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part of the lieu land grant made by the gov- , when she resided upon a homestead she had ernment of the United States to the Northern entered upon government land. Pacific Railroad Company. In the summer On May 1, 1896, McCool entered into a conof 1891 the land was occupied by one Hughes, tract with the Northern Pacific Railway who had made certain improvements there- Company, the successor in interest of the on. The appellant Hugh McCool, desiring Northern Pacific Railroad Company, for the the property, purchased Hughes' improve purchase of the land. The consideration ments and his possessory or "squatter" right named in the contract was $640 to be paid in for the sum of $800, paying a part of the annual partial payments extending over a purchase price in cash and giving his note, period of ten years. The final payment was payable at a future date, for the remainder. not made, however, until the year 1909. At In the fall of the same year, McCool met the that time McCool was indebted in considerrespondent and her husband, who were then able sums to the respondent the First Nationwith their family camping on a small creek al Bank of Walla Walla. The bank also near the land in question. They were search- seems to have advanced to him the money ing for a tract of land which they could necessary to make the final payment. But, homestead or purchase. The husband of be this as it may, the deed from the railway the respondent and McCool were first cous-company for the land ran directly to the ins, and had formerly been neighbors in the bank as security, as both McCool and the county of Walla Walla. On learning their bank concede, for the indebtedness at that errand, McCool suggested that they move on. time owing from McCool to the bank. Me to the land that he had recently purchased Cool paid all of the taxes assessed against the of Hughes. On the next day, McCool and property from the time the O'Donnells moved O'Donnell rode over to look at the land, and thereon until the year 1909. He also testified shortly thereafter O'Donnell moved thereon that he had repaid all of the money advancwith his family. No writing passed between ed him by O'Donnell, although his testimony the parties evidencing the conditions under in that respect is disputed by Mrs. O'Donnell which possession of the property was given | During the first years of the O'Donnell's O'Donnell, and the living witnesses (O'Don- occupancy, McCool pastured a number of nell, the husband, having since died) have no cattle on the premises and the surrounding very distinct recollection of the conditions. country which were fed and cared for by the Mrs. O'Donnell testified that they purchased O'Donnells during the winter season; and the property from him, while McCool testified during the entire period he has pastured that he merely "let them take it if they work horses and saddle horses thereon, which would care for any stock I had there, and were likewise cared for by the O'Donnells, keep up the ranch." It is in evidence, how some of such horses being on the premises at ever, that O'Donnell had at that time a ibe time of the trial. considerable sum of money on deposit with In 1902, James O'Donnell, a son of the rethe Big Bend National Bank of Davenport, spondent, wrote McCool inquiring what he and that he gave McCool privilege to draw wanted for the ranch, saying, "If you don't upon the deposit to the extent of $900. Can- want too much, I'm going to try to buy it." celed checks in the record show that he drew In 1909, the construction of a high school upon the fund to the extent of $680, and, building was contemplated in the school diswhile McCool testifies that this is all he re-trict of which the premises formed a part, ceived from the fund, Mrs. O'Donnell pro- and considerable interest was manifested by duced a check for an additional $200, drawn the people of the district as to the place of by her husband payable to himself, which its location. One of the sites selected as she says was drawn for McCool's use, and suitable was near the boundary of the prem the money paid over to him. These checks ises, and one of the objections to the selecwere all drawn during the fall of the year tion of the site seems to have been the lack 1891.

of water. To overcome this difficulty, Mrs. After taking possession of the land, the O'Donnell proposed to allow them to pipe O'Donnells, within the next few years, plac- water from a sprin

water from a spring arising on the premed valuable improvements on the property. ises, and to that end she wrote a letter to They fenced the entire tract, erected a nine- McCool, dated August 31st, asking him to room house thereon, built a substantial barn, consent to a grant of the privilege

consent to a grant of the privilege. In the a stock shed, and other outbuildings, planted | letter she says: an orchard of 50 or 60 fruit trees, and clear-! “I am writing you in regard to our consolied, broke the sod, and placed under cultiva

dated high school. I would like very much if

1 you [could) be here on the 13 of Sept. to vote tion some 75 acres of the remaining land; / where it [is] to be located. There are two improvements valued by the witnesses at sites at Fruitland, one joins this place, _* from $2,500 to $3,500. The respondent and and the only drawback is the water. Hugh, it her husband resided upon and maintained

you can't come, if you will give me the privilege

to give enough water for the schoolhouse, I think possession upon the land until his death in we will get the school. * * * We will never 1898. Since that time the respondent has miss the water they will take for the schoolmaintained such possession, actually resid

house, * * * they haul water, all the time

for to drink from here. The well water is not ing upon the land for the entire period, ex- good. that is why they want water from the

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let them have it. . . . Let me know before proceed. The court denied the motion, and the 13 of Sept. and try and come if you can. its ruling in that behalf constitutes the first It is money in our pockets."

error assigned. But we think the ruling It is true Mrs. O'Donnell denies writing without error. Conceding that the facts set certain of the sentences we have quoted, but forth in the pleading justified the plaintiff's in this we are afraid she has not been entire claim of title to the property in issue, first, ly frank. Before her attention was called on the ground that she had been in the open, to the contents of the letter, she admitted notorious, and adverse possession of the propthat the signature to the letter was hers and erty under a claim of right for the period of that the letter was in her handwriting. Un- the statute of limitations, and, second, on the fortunately, the original was lost during the ground that she had paid the purchase price course of the trial, and the letter is in the of the property although title was taken in record by copy, and we have not the privi- the name of another, no rule of law prevents lege of personally inspecting it; ut neither her from introducing evidence tending to she nor any one else pretends to say that the show both states of facts. Both could be true, objectionable sentences were interlined, or and to prove the one she was not compelled that they appeared to be in a different hand- to contradict the other. The ultimate inwriting from that of the main body of the quiry was the ownership of the property, and letter which she admits having written. there is no inconsistency in urging different Without further comment, it is sufficient to sources of title all of which lead to ultimate say that we have no doubt of the genuine title in the plaintiff and result in one and ness of the letter. In the record is another the same judgment. It is not a case of an letter which was written by a son-in-law of election of remedies. This doctrine applies Mrs. O'Donnell concerning the same matter. only to cases where the plaintiff has a choice In this letter, he speaks of the premises as of remedies arising out of the same state of property in which McCool has an interest; facts, a familiar example of which is a breach saying that he writes at the request of the of a contract to perform some specific underdirectors of the different school districts in- taking, where the party injured may choose terested, as they wished to know what he between the remedy of damages and the would ask for the right to pipe water from remedy of specific performance. All of the the spring on the premises to a contemplat cases agree that the two remedies cannot be ed school building.

pursued concurrently in the same action, or On October 7, 1911, the appellant bank be- even concurrently in separate actions ;. but gan an action to foreclose the lien evidenced no case that has been called to our attention by the deed to it from the railway company, holds that a plaintiff may not plead and inalleging the deed to be a mortgage. To this troduce proof upon different states of facts action McCool and wife alone were made par- to establish the ultimate issue, although the ties defendant, and, McCool and wife making facts may call for the application of differdefault therein, a decree of foreclosure ent principles of law. Such was our holding against them was entered directing a sale of in Hutchinson v. Mt. Vernon Water & Powthe property. An order of sale was issued er Co., 49 Wash. 469, 95 Pac. 1023, where it on the decree, when the present action was is said: instituted for the purposes and with the re-l "In their complaint the plaintiffs based their sult before stated.

right or title to the water on three grounds: [1] The respondent has moved to dismiss

(1) As riparian owners on the water course

through which the water flowed; (2) as apthe appeal, basing her motion on the fact propriators; and (3) under the contract as that no abstract of record was served on the above set forth. The defendant moved the court respondent at or before the time he was re

to require the plaintiffs to separately state their

several causes of action, and later to require the quired by statute to serve his opening brief.

plaintiffs to elect on which of their several causBut an examination of transcript will show es of action they intended to rely. These mothat the appeal to this court was taken before tions were properly denied. In actions to rethe statute 'requiring the service of abstracts Co.

cover or establish rights in property, each in

dependent source through which a plaintiff went into effect. The statute did not in terms claims does not constitute a separate cause of purport to apply to pending appeals, and this action. The ultimate facts upon which the court construed it. when formulating rules plaintiffs relied for a recovery in this case were

their right or title to the water and the defendof procedure under it, as not so applying.

o so apprying ant's wrongful interference therewith. This We are still of the opinion that the construc- cause of action was one and indivisible, regardtion put upon the statute was correct. The less of the sources through which the plaintiffs motion therefore must be denied.

might claim.” [2, 3] It is the appellants' first contention See, also, Bernot v. Morrison, 81 Wash. that the complaint of the respondent sets 538, 143 Pac. 104. forth two inconsistent theories; the one The trial court made no findings of fact on founded on the doctrine of adverse posses- the merits of the case, and we have been unsion, and the other on the doctrine of a trust able to gather from the record the precise resulting from the payment of the purchase ground upon which the decree was rested. price. At the opening of the trial, they mov- Two possible grounds are suggested on which ed the court to require the respondent to the decree may rest, that of adverse posseselect upon which of these theories she would sion, and that of a resulting trust. It is on

the first of these that the respondent's coun-, trust and may have really intended to resist sel principally rely to sustain the decree, and it." 39 Cyc. 101. While such a trust may this claim we shall first notice.

arise from other transactions, it has its most [4, 5] Undoubtedly, the respondent has been frequent application to transactions where in possession of the premises for a sufficient one party pays the purchase price of properlength of time to cover the period of the ty and title thereto is taken in another. In statute of limitations, and it may be conced- the case before us, if there is a resulting ed that her possession has been open and trust at all, it arises in this latter way. But notorious. But these conditions alone do not | in any view of the evidence it is clear that satisfy the statute. In this state, possession neither the respondent, nor her husband, nor of real property to ripen into title must not both together, paid the entire purchase price only be open and notorious, but it must be

of the property. There could not therefore under color of title or claim of right and ad-be title in respondent, in virtue of a resulting verse to all other claimants. The facts recit- trust, to the whole of the property. ed, we think, conclusively show that the re

But there may be a resulting trust in land spondent's possession of this property has not to a part less than the whole. Croup v. Debeen adverse to McCool. Not only has she Moss, 78 Wash. 128, 138 Pac. 671. When one recognized during the entire period of her

| party makes an oral contract with another possession his right to pasture stock upon the

that the latter shall buy a specific tract of premises, but her letter of August 31, 1909, land on their common account, furnishing from which we have quoted, clearly shows

him with an aliquot part of the money rethat she then thought that he had such an

quired for the purpose, and he purchases the interest in the property as to prevent her

property, but in violation of the agreement from conveying full title to the water arising

takes the title in his own name or in the

name of a third person, a trust results in fathereon for the use of the contemplated high

vor of the first person for such aliquot part. school. The letter of her son written some

Bailey v. Hemenway, 147 Mass. 326, 17 N. E. years before this period, and the letter of her

645. The evidence convinces us that such son-in-law, written during the period, bear evi

was the condition here. McCool had paid dence that her immediate family did not un

$800 to procure the release of Hughes. The derstand that she claimed to be or was the sole

sum of $610 was required to procure the in. owner of the property. True, none of these let

terest held by the railway company. O'Donters · recognize an absolute ownership in MC

nell placed to McCool's use $900. Of this Cool-that of the respondent, since she speaks

sum McCool concededly applied to his use of the contemplated grant as being “money in

$640, and there is reason to believe that he our pockets," and the water taken, as "water

so applied $200 more. In addition to this, we will never miss," indicates rather a joint

O'Donnell entered into possession of the propor common interest than absolute ownership

erty and at once began to place thereon, and —but there is nevertheless in each of them a

within a short time did place thereon, valuarecognition of some interest in McCool, and

ble and permanent improvements. The parany such recognition is contrary to a claim

ties have, also, down to a very recent period of adverse possession to the whole of the

of time, recognized common interests in each property. The fact, also, that McCool only

other in the property. It is not reasonable recently paid that part of the purchase price

to suppose that all this was done with the of the land necessary to acquire title from

idea that O'Donnell was to be the mere tenthe railway company, and paid the taxes on

ant at sufferance of McCool. On the con. the whole of the property for the entire peri

trary, the transactions carry the idea of perod of the respondent's possession, with re

manent, rather than transient, interests. spondent's acquiescence and knowledge, is al- | After this lapse of years, it cannot. ofc so very persuasive of the conclusion that the be known with absolute certainty the exact respondent had not made it clear to McCool proportions each of the parties invested in that her possession was adverse to his inter- the purchase price of the property ; but lookests. Our conclusion is that the decree can- ing to the indisputable evidence, not regardnot rest on the rule of adverse possession, ing too closely that depending upon the uni

[6-8] Nor do we think the decree can be certain memories of the parties, the mind is rested in its entirety on the alternative led to the conclusion that the parties intendground suggested by the respondent. A “re-ed to invest therein in equal moieties. That sulting trust” is a trust implied by law from the amounts were very nearly equal we think the transactions of the parties. It never is proven, and that it is no injustice to either arises out of contract or agreement that is of the parties to so regard it. A trust there legally enforceable, “but arises by implication fore results in the respondent for an undiridof law from their acts and conduct apart ed half interest in the property. from any contract, the law implying a trust | The conclusion reached requires a modifiwhere the acts of the party to be charged as cation of the judgment. The title to an untrustee have been such as are in honesty and divided half interest only should have been fair dealing consistent only with a purpose to quieted in the respondent, and a sale permit. hold the property in trust, notwithstanding ted as to the other undivided half.

course,

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manded, with instructions to modify the de- , appellant was designated in the complaint cree accordingly.

as the Copper King Mining Company, a corpo

ration. Service of the summons and comMORRIS, C, J., and MAIN and ELLIS, JJ.,

plaint was made upon S. P. Domer, president concur.

of the Chewelah Copper King Mining Com(89 Wash. 519)

pany, a corporation. After service of the FREEBORN V. CHEWELAH COPPER

complaint, Mr. Domer appeared as attorney, KING MINING CO. (No. 12848.)

and filed a demurrer to the complaint, and (Supreme Court of Washington. Feb. 7, 1916.)

thereafter an answer; and later an amended

answer, in which it was alleged that the 1. APPEAL AND ERROR O 580RECORD-AB

Copper King Mining Company had been disSTRACT.

Where the case comes up on a transcript of solved by operation of law by its failure to less than 100 pages, containing the pleadings, pay the state license, and that prior to its no abstract of the record is necessary.

dissolution it sold and disposed of all its [Ed. Note. For other cases, see Appeal and

il assets. The amended answer then denied all Error, Cent. Dig. § 2574; Dec. Dig. 580.] 2. PARTIES C 95—MISNOMER-AMENDMENT

the allegations of the complaint. Thereafter, CORPORATE NAME

upon showing made, the trial court permitWhere it was clearly the intention of the ted the complaint to be amended by insertplaintiffs to sue the “Chewelah Copper King ing the word the "Chewelah” before the name Company," the president of which was served,

"Copper King Mining Company," so that the the court properly authorized amendment of the complaint against the “Copper King Mining complaint as amended was against the “CheCompany, a corporation."

welah Copper King Mining Company, a cor[Ed. Note. For other cases, see Parties, poration.” Thereafter, upon motion of the Cent, Dig. 88 160–166; Dec. Dig. Omw95.)

plaintiff for default, the court ordered as 3. CORPORATIONS O508APPEARANCE - AN

follows: SWER IN GENERAL DENIAL.

“The Chewelah Copper King Mining ComWhere defendant corporation, after being . served through its president and notified of the

ified of the pany, a corporation, is hereby ordered and diamendment of the complaint correcting a mis

rected to elect, and advise the court of its acnomer of defendant, elected to stand upon its

tion, within five days from the date of this oramended answer which was a general denial,

der, whether or not it will stand upon its orig

inal answer on file herein, or further plead in there was a sufficient appearance to give the

said cause; and, in the event that said defendcourt jurisdiction. [Ed. Note.-For other cases, see Corporations, | fied. then in that instance said motion for de

ant fails to elect within the time herein speciCent. Dig. 88 2001-2005; Dec. Dig. 508.)

fault shall be granted, without further notice." 4. JUDGMENT 107JUDGMENT BY DEFAULT

| This order was dated October 7, 1914. -PROPRIETY. Where defendant corporation, before the

Thereafter on the 13th day of October, 1914, default judgment against it was signed by the Mr. Domer appeared and filed an election to court, filed an amended answer, denying the al- | stand upon the amended answer theretofore legations of the complaint, upon which it elected

filed in the case. to stand, on plaintiff's motion for default, it was

Thereafter, on the next the court's duty to set the case down for trial,

day, the trial court ertered a judgment by and a default judgment for plaintiff was im default, from which this appeal is proseproperly granted.

cuted. [Ed. Note. For other cases, see Judgment,

| [2, 3] It is strenuously argued by the apCent. Dig. 88 198-200; Dec. Dig. Om 107.]

pellant that the plaintiff has sued the wrong Department 1. Appeal from Superior

company; and authorities are cited that in Court, Stevens County; W. H. Jackson,

such a case the complaint is of no effect, and Judge.

the court should have dismissed the action, Action by Thomas Freeborn against the

| because it had no jurisdiction of the defendChewelah Copper King Mining Company.

| ant. But in this case, while the defendant From a default judgment for plaintiff, de

was named as the “Copper King Mining Comfendant appeals. Reversed, and cause re pany, a corporation," the record shows that manded.

the president of the “Chewelah Copper King S. P. Domer, of Spokane, for appellant. Mining Company” was served; and it was R. A. Thayer, of Colville, for respondent. clearly the intention of the parties to sue

the Chewelah Copper King Mining Company. MOUNT, J. [1] This is an appeal from a Under the showing which was made, we default judgment entered against the appel- think the court properly authorized an amendlant. The respondent moves to dismiss the ment of the name; and that when the deappeal because the appellant has not made an fendant, after being served, and notified of abstract of the record. The case comes up the amendment, elected to stand upon the on a transcript containing the pleadings in amended answer which had been filed, and the case, and does not contain 100 pages. No which was a general denial, that was a sufabstract was therefore necessary. The mo- ficient appearance. tion is therefore denied.

[4] But we are satisfied the court erred in The action was begun to foreclose certain granting a default judgment. Before the deliens of laborers upon mining property al-fault judgment was signed by the court, the leged to be owned by the appellant. The appellant had on file an amended answer de

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

nying the allegations of the complaint. He, state, sets up as a counterclaim that the nad elected to stand upon that answer. In chauffeur's wife took another automobile of short, the issues were made up; and it was Keen out of his garage, and used it "for the the duty of the court to set the case down benefit of the marital community of the for trial, and not grant a judgment by de- plaintiff and herself" for a period of four fault under those conditions.

hours, during which time she damaged it. The judgment is therefore reversed, and The counterclaim was to recover the value of the cause remanded for trial upon the com- its use, as well as the cost of the repair. plaint and amended answer.

Plaintiff demurred to this as an attempt to

set off tort against contract. Error is asMORRIS, C. J., and CHADWICK, FUL signed on the lower court's sustaining that LERTON, and ELLIS, JJ., concur.

demurrer.

[1] As the answer does not show, and as it

is not claimed in argument, that the wife's (89 Wash. 597)

taking of the automobile was other than KILLINGSWORTH v. KEEN. (No. 13247.)

tortious, the husband and the community (Supreme Court of Washington. Feb. 15, 1916.) property are protected against liability in 1. HUSBAND AND WIFE 102–TOBTS-LIA that respect by Rem. & Bal. Code, $ 5929, as BILITY.

follows: Under Rem. & Bal. Code, 8 5929, providing that damages may be recovered from a married

“For all injuries comitted by a married vo

hy her but man, damages may be recovered from her alope. woman for all injuries committed by her, but mai that her husband shall not be responsible there and her husband shall not be responsible there. for. except where he would be jointly responsible for, except in case where he would be jointly if the marriage did not exist, a chauffeur, whose responsible with her if the marriage did not wife took his employer's car and damaged it, is not liable for her tortious act.

We have had occasion to remark in a suit [Ed. Note.-For other cases, see Husband and upon false representations by a wife that we Wife, Cent. Dig. 8 132; Dec. Dig. Om 102.]

know of no statute making the community 2. HUSBAND AND WIFE 102, 268_TORTS

property liable for them. Strom v. Toklas, LIABILITY.

Where the wife of a chauffeur took his em 78 Wash. 223, 230, 138 Pac. 880. ployer's car and damaged it, the act was tor- [2] Appellant argues that this is one of tious, and the husband and the community prop- those torts which the injured party may erty were not liable; nor could they be made liable by an attempted waiver of the tortious

waive in its tort aspect and sue upon as creaspect by the employer and suit on the contrac- ating an implied promise to reimburse for tual aspect, unless the chauffeur consented. value appropriated. Assuming, but not de

[Ed. Note.- For other cases, see Husband and ciding, that, still it cannot be applied here. Wife, Cent. Dig. 88 132, 562; Dec. Dig. Om 102, 268.]

Keen might, indeed, be permitted to do this 3. HUSBAND AND WIFE 270_TORTS-AC

in an action between him and the wife; but TIONS-PLEADING.

here he is in litigation with a third person, Where the wife of a chauffeur took his em protected by statute. The wife's act was ployer's car and damaged it, and in the employ- a tort to begin with. It cannot be made er's action he pleaded that the taking 'was "for the benefit of the marital community," the

contractual against the husband, unless he, pleading was insufficient to show liability of the too, waives the form of action. husband or the community, since the wife's tort [3] The bare and general allegation for was presumptively not for the benefit of the the benefit of the marital community" does community, and facts must be pleaded to disturb the presumption

not oblige us to discuss under this statute Ed. Note. For other cases, see Husband and the situations in which a husband by acWife, Cent. Dig. & 564; Dec. Dig. Om 270.) quiescence, authorization, acceptance of prof. 4. PLEADING O9-CONCLUSIONS OF LAW-its, or otherwise may be estopped to quesFACTS-SUFFICIENCY.

tion the community's or his own liability. Although conclusions of law pleaded in company with facts, though defectively set out, may

The tort was presumptively not for the benbe good against demurrer, they cannot be up-efit of the community, and facts must be beld when pleaded without sustaining facts. pleaded to disturb that presumption.

[Ed. Note. For other cases, see Pleading, [4] We have sustained conclusions of law Cent. Dig. § 29; Dec. Dig. Om9.)

against demurrer when facts, though defecDepartment 2. Appeal from Superior Court, tively set out, accompanied that conclusion. King County; Kenneth Mackintosh, Judge. Harris v. Halverson, 23 Wash. 779, 782, 63

Action by U. Killingsworth against F. W. | Pac. 549. But to sustain them utterly withKeen, in which defendant interposed a coun-out facts is contrary to the whole theory of terclaim. Demurrer to the counterclaim was / Code pleading. Freeman v. Centralia, 67 sustained, and defendant appeals, assigning

Wash. 142, 148, 120 Pac. 886, Ann. Cas. error to that order. Judgment affirmed.

1913D, 786; Longfellow v. Seattle, 76 Wash.

509, 517, 136 Pac. 855; Martin v. Olympia, Israel & Kohlbase, of Seattle, for appel

69 Wash. 28, 124 Pac. 214. lant.

Judgment affirmed. BAUSMAN, J. Keen, sued by his chauf. MORRIS, C. J., and MOUNT, HOLCOMB. feur for wrongful discharge outside of the) and PARKER, JJ., concur.

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