when she resided upon a homestead she had entered upon government land.

On May 1, 1896, McCool entered into a contract with the Northern Pacific Railway Company, the successor in interest of the Northern Pacific Railroad Company, for the purchase of the land. The consideration named in the contract was $640 to be paid in annual partial payments extending over a period of ten years. The final payment was not made, however, until the year 1909. At that time McCool was indebted in considerable sums to the respondent the First Nation al Bank of Walla Walla. The bank also seems to have advanced to him the money necessary to make the final payment. But, be this as it may, the deed from the railway company for the land ran directly to the bank as security, as both McCool and the bank concede, for the indebtedness at that time owing from McCool to the bank. Me Cool paid all of the taxes assessed against the property from the time the O'Donnells moved thereon until the year 1909. He also testified that he had repaid all of the money advanc ed him by O'Donnell, although his testimony in that respect is disputed by Mrs. O'Donnell. During the first years of the O'Donnell's occupancy, McCool pastured a number of cattle on the premises and the surrounding country which were fed and cared for by the O'Donnells during the winter season; and during the entire period he has pastured work horses and saddle horses thereon, which were likewise cared for by the O'Donnells, some of such horses being on the premises at the time of the trial.

part of the lieu land grant made by the government of the United States to the Northern Pacific Railroad Company. In the summer of 1891 the land was occupied by one Hughes, who had made certain improvements thereon. The appellant Hugh McCool, desiring the property, purchased Hughes' improvements and his possessory or "squatter" right for the sum of $800, paying a part of the purchase price in cash and giving his note, payable at a future date, for the remainder. In the fall of the same year, McCool met the respondent and her husband, who were then with their family camping on a small creek near the land in question. They were searching for a tract of land which they could homestead or purchase. The husband of the respondent and McCool were first cousins, and had formerly been neighbors in the county of Walla Walla. On learning their errand, McCool suggested that they move onto the land that he had recently purchased of Hughes. On the next day, McCool and O'Donnell rode over to look at the land, and shortly thereafter O'Donnell moved thereon with his family. No writing passed between the parties evidencing the conditions under which possession of the property was given O'Donnell, and the living witnesses (O'Donnell, the husband, having since died) have no very distinct recollection of the conditions. Mrs. O'Donnell testified that they purchased the property from him, while McCool testified that he merely "let them take it if they would care for any stock I had there, and keep up the ranch." It is in evidence, however, that O'Donnell had at that time a 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 dis while McCool testifies that this is all he re-trict of which the premises formed a part, ceived from the fund, Mrs. O'Donnell produced a check for an additional $200, drawn by her husband payable to himself, which she says was drawn for McCool's use, and the money paid over to him. These checks were all drawn during the fall of the year 1891.

After taking possession of the land, the O'Donnells, within the next few years, placed valuable improvements on the property. They fenced the entire tract, erected a nineroom house thereon, built a substantial barn, a stock shed, and other outbuildings, planted an orchard of 50 or 60 fruit trees, and clear

ed, broke the sod, and placed under cultivation some 75 acres of the remaining land; improvements valued by the witnesses at from $2,500 to $3,500. The respondent and her husband resided upon and maintained possession upon the land until his death in 1898. Since that time the respondent has maintained such possession, actually residing upon the land for the entire period, ex

and considerable interest was manifested by the people of the district as to the place of its location. One of the sites selected as suitable was near the boundary of the prem ises, and one of the objections to the selec tion of the site seems to have been the lack of water. To overcome this difficulty, Mrs. O'Donnell proposed to allow them to pipe water from a spring arising on the prem ises, and to that end she wrote a letter to McCool, dated August 31st, asking him to consent to a grant of the privilege. In the letter she says:

"I am writing you in regard to our consoli you [could] be here on the 13 of Sept. to vore dated high school. I would like very much if where it [is] to be located. There are two sites at Fruitland, one joins this place, and the only drawback is the water. Hugh, if you can't come, if you will give me the privilege to give enough water for the schoolhouse, I think we will get the school. * * We will never miss the water they will take for the school for to drink from here. The well water is not house, * they haul water, all the time good, that is why they want water from the

let them have it.
Let me know before
the 13 of Sept. and try and come if you can.
It is money in our pockets."

proceed. The court denied the motion, and its ruling in that behalf constitutes the first 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; but 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 would ask for the right to pipe water from the spring on the premises to a contemplated school building.

On October 7, 1911, the appellant bank began an action to foreclose the lien evidenced by the deed to it from the railway company, alleging the deed to be a mortgage. To this action McCool and wife alone were made parties defendant, and, McCool and wife making default therein, a decree of foreclosure against them was entered directing a sale of the property. An order of sale was issued on the decree, when the present action was instituted for the purposes and with the result before stated.

[1] The respondent has moved to dismiss the appeal, basing her motion on the fact that no abstract of record was served on the respondent at or before the time he was required by statute to serve his opening brief. But an examination of transcript will show that the appeal to this court was taken before the statute requiring the service of abstracts The statute did not in terms purport to apply to pending appeals, and this court construed it, when formulating rules of procedure under it, as not so applying. We are still of the opinion that the construction put upon the statute was correct. The motion therefore must be denied.

went into effect.

[2, 3] It is the appellants' first contention that the complaint of the respondent sets forth two inconsistent theories; the one founded on the doctrine of adverse possession, and the other on the doctrine of a trust resulting from the payment of the purchase price. At the opening of the trial, they moved the court to require the respondent to elect upon which of these theories she would

between the remedy of damages and the remedy of specific performance. All of the cases agree that the two remedies cannot be pursued concurrently in the same action, or even concurrently in separate actions; but no case that has been called to our attention holds that a plaintiff may not plead and introduce proof upon different states of facts to establish the ultimate issue, although the facts may call for the application of different principles of law. Such was our holding in Hutchinson v. Mt. Vernon Water & Power Co., 49 Wash. 469, 95 Pac. 1023, where it is said:

"In their complaint the plaintiffs based their right or title to the water on three grounds: through which the water flowed; (2) as ap(1) As riparian owners on the water course propriators; and (3) under the contract as above set forth. The defendant moved the court to require the plaintiffs to separately state their several causes of action, and later to require the plaintiffs to elect on which of their several causes of action they intended to rely. These motions were properly denied. In actions to recover or establish rights in property, each independent source through which a plaintiff claims does not constitute a separate.cause of action. The ultimate facts upon which the plaintiffs relied for a recovery in this case were their right or title to the water and the defend

ant's wrongful interference therewith. This cause of action was one and indivisible, regardless of the sources through which the plaintiffs might claim."

See, also, Bernot v. Morrison, 81 Wash. 538, 143 Pac. 104.

The trial court made no findings of fact on the merits of the case, and we have been unable to gather from the record the precise ground upon which the decree was rested. Two possible grounds are suggested on which the decree may rest, that of adverse possession, and that of a resulting trust. It is on

the first of these that the respondent's counsel principally rely to sustain the decree, and this claim we shall first notice.

trust and may have really intended to resist it." 39 Cyc. 104. While such a trust may arise from other transactions, it has its most frequent application to transactions where

ty and title thereto is taken in another. In the case before us, if there is a resulting trust at all, it arises in this latter way. But in any view of the evidence it is clear that neither the respondent, nor her husband, nor both together, paid the entire purchase price of the property. There could not therefore be title in respondent, in virtue of a resulting trust, to the whole of the property.

[4, 5] Undoubtedly, the respondent has been in possession of the premises for a sufficient | one party pays the purchase price of properlength of time to cover the period of the statute of limitations, and it may be conceded that her possession has been open and notorious. But these conditions alone do not satisfy the statute. In this state, possession of real property to ripen into title must not only be open and notorious, but it must be under color of title or claim of right and adverse to all other claimants. The facts recited, we think, conclusively show that the respondent's possession of this property has not been adverse to McCool. Not only has she recognized during the entire period of her possession his right to pasture stock upon the premises, but her letter of August 31, 1909, from which we have quoted, clearly shows that she then thought that he had such an interest in the property as to prevent her from conveying full title to the water arising thereon for the use of the contemplated high school. The letter of her son written some

our pockets," and the water taken, as "water we will never miss," indicates rather a joint or common interest than absolute ownership

-but there is nevertheless in each of them a

But there may be a resulting trust in land to a part less than the whole. Croup v. DeMoss, 78 Wash. 128, 138 Pac. 671. When one party makes an oral contract with another that the latter shall buy a specific tract of land on their common account, furnishing him with an aliquot part of the money required for the purpose, and he purchases the property, but in violation of the agreement takes the title in his own name or in the name of a third person, a trust results in favor of the first person for such aliquot part. Bailey v. Hemenway, 147 Mass. 326, 17 N. E.

645. The evidence convinces us that such was the condition here. McCool had paid

Of this

years before this period, and the letter of her son-in-law, written during the period, bear evidence that her immediate family did not understand that she claimed to be or was the sole $800 to procure the release of Hughes. The sum of $640 was required to procure the inowner 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. 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 so applied $200 more. In addition to this, O'Donnell entered into possession of the property and at once began to place thereon, and within a short time did place thereon, valuable and permanent improvements. The parties have, also, down to a very recent period of time, recognized common interests in each other in the property. It is not reasonable to suppose that all this was done with the idea that O'Donnell was to be the mere tenant at sufferance of McCool. On the contrary, the transactions carry the idea of permanent, rather than transient, interests. After this lapse of years, it cannot, of course, be known with absolute certainty the exact proportions each of the parties invested in the purchase price of the property; but looking to the indisputable evidence, not regarding too closely that depending upon the uncertain memories of the parties, the mind is led to the conclusion that the parties intended to invest therein in equal moieties. That the amounts were very nearly equal we think is proven, and that it is no injustice to either of the parties to so regard it. A trust therefore results in the respondent for an undivided half interest in the property.

recognition of some interest in McCool, and any such recognition is contrary to a claim of adverse possession to the whole of the property. The fact, also, that McCool only recently paid that part of the purchase price of the land necessary to acquire title from the railway company, and paid the taxes on the whole of the property for the entire period of the respondent's possession, with respondent's acquiescence and knowledge, is also very persuasive of the conclusion that the respondent had not made it clear to McCool that her possession was adverse to his interests. Our conclusion is that the decree cannot rest on the rule of adverse possession.

[6-8] Nor do we think the decree can be rested in its entirety on the alternative ground suggested by the respondent. A "resulting trust" is a trust implied by law from the transactions of the parties. It never arises out of contract or agreement that is legally enforceable, "but arises by implication of law from their acts and conduct apart from any contract, the law implying a trust where the acts of the party to be charged as trustee have been such as are in honesty and fair dealing consistent only with a purpose to hold the property in trust, notwithstanding

The conclusion reached requires a modification of the judgment. The title to an undivided half interest only should have been quieted in the respondent, and a sale permitted as to the other undivided half.

manded, with instructions to modify the de- [appellant was designated in the complaint cree accordingly. as the Copper King Mining Company, a corporation. Service of the summons and com

MORRIS, C. J., and MAIN and ELLIS, JJ., plaint was made upon S. P. Domer, president

Where defendant corporation, after being "The Chewelah Copper King Mining Comserved through its president and notified 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 amended answer which was a general denial, there was a sufficient appearance to give the court jurisdiction.

[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

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 counterclaim was to recover the value of its use, as well as the cost of the repair. Plaintiff demurred to this as an attempt to set off tort against contract. Error is as

The judgment is therefore reversed, and the cause remanded for trial upon the complaint and amended answer.

MORRIS, C. J., and CHADWICK, FUL- signed on the lower court's sustaining that LERTON, and ELLIS, JJ., concur. demurrer.

(89 Wash. 597)

KILLINGSWORTH v. KEEN. (No. 13247.) (Supreme Court of Washington. Feb. 15, 1916.) 1. HUSBAND AND WIFE 102-TOBTS-LIA

BILITY.

Under Rem. & Bal. Code, § 5929, providing that damages may be recovered from a married woman for all injuries committed by her, but that her husband shall not be responsible therefor, except where he would be jointly responsible if the marriage did not exist, a chauffeur, whose wife took his employer's car and damaged it,

is not liable for her tortious act.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 132; Dec. Dig. 102.] 2. HUSBAND AND WIFE 102, 268-TORTS

LIABILITY.

[1] As the answer does not show, and as it is not claimed in argument, that the wife's taking of the automobile was other than tortious, the husband and the community property are protected against liability in that respect by Rem. & Bal. Code, § 5929, as follows:

"For all injuries comitted by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor, except in case where he would be jointly responsible with her if the marriage did not exist."

We have had occasion to remark in a suit upon false representations by a wife that we know of no statute making the community property liable for them. Strom v. Toklas, 78 Wash. 223, 230, 138 Pac. 880.

[2] Appellant argues that this is one of those torts which the injured party may waive in its tort aspect and sue upon as cre

Where the wife of a chauffeur took his employer's car and damaged it, the act was tortious, and the husband and the community property were not liable; nor could they be made liable by an attempted waiver of the tortious aspect by the employer and suit on the contrac-ating an implied promise to reimburse for tual aspect, unless the chauffeur consented. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 132, 562; Dec. Dig. 102, 268.]

Where the wife of a chauffeur took his employer's car and damaged it, and in the employer's action he pleaded that the taking was "for the benefit of the marital community," the pleading was insufficient to show liability of the husband or the community, since the wife's tort was presumptively not for the benefit of the community, and facts must be pleaded to disturb the presumption.

value appropriated. Assuming, but not deciding, that, still it cannot be applied here. Keen might, indeed, be permitted to do this in an action between him and the wife; but here he is in litigation with a third person, protected by statute. The wife's act was a tort to begin with. It cannot be made contractual against the husband, unless he, too, waives the form of action.

[3] The bare and general allegation "for the benefit of the marital community" does not oblige us to discuss under this statute the situations in which a husband by acquiescence, authorization, acceptance of prof

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 564; Dec. Dig. 270.] 4. PLEADING 9-CONCLUSIONS OF LAW-its, or otherwise may be estopped to quesFACTS-SUFFICIENCY.

Although conclusions of law pleaded in company with facts, though defectively set out, may be good against demurrer, they cannot be upheld when pleaded without sustaining facts. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 29; Dec. Dig. 9.]

tion the community's or his own liability. The tort was presumptively not for the benefit of the community, and facts must be pleaded to disturb that presumption.

[4] We have sustained conclusions of law 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 error to that order. Judgment affirmed. Israel & Kohlhase, of Seattle, for appel

lant.

BAUSMAN, J. Keen, sued by his chauffeur for wrongful discharge outside of the

Wash. 142, 148, 120 Pac. 886, Ann. Cas 1913D, 786; Longfellow v. Seattle, 76 Wash. 509, 517, 136 Pac. 855; Martin v. Olympia, 69 Wash. 28, 124 Pac. 214.

Judgment affirmed.

MORRIS, C. J., and MOUNT, HOLCOMB, and PARKER, JJ., concur.