Ballinger & Hutson, of Seattle, and Thom- whom the assignments had been made, wrote as F. Trumbull, of Port Angeles, for appel- a letter to the commissioner of lands of the lants. William B. Ritchie, of Port Angeles, state, saying: and Fletcher & Evans and Robert B. Walkinshaw, all of Tacoma, for respondent.

MOUNT, J.

"A party comprising the following gentlemen have purchased the interest in these lands helá by the P. A. & E. R. R., and with their holdings intend forming a terminal company in the future: Arthur Newman, F. H. Carlisle, C. Vey Holman, Fred A. Cooke, Lemuel Pope, and David W. Craig. They have appointed me as their trustee."

of public

real estate covered by the contracts. In the year 1906 the railroad company, then being insolvent, and probably insolvent at the time the assignments of the contracts above stated were made, executed quitclaim deeds to Mr. Trumbull for all the lands it then owned which were held in trust by one James Stuart. It also made a bill of sale of all its office furniture and fixtures to Mr.

This action was brought to quiet title to certain tideland lots in front of the city of Port Angeles, in Clallam county. The plaintiff sues as trustee, alleging that he is the trustee for F. H. Carlisle, Flora E. Thereupon the commissioner Craig, Charles B. Smith, W. F. Delabarre, lands approved the assignments. Thereafter F. B. Carlisle, and Rachel Newman; that as David W. Craig caused to be paid each year such trustee the record title of the real es- the taxes, interest, and principal due upon tate described is vested in him; that he the contracts until the same were fully paid. owns and holds the same in trust for the The money to make these payments was above-named persons; that the lands are furnished by Mr. Craig and his associates. tidelands; that the plaintiff and his grantors Thereafter on May 9, 1907, the state executhave paid the taxes and assessments against ed deeds to David W. Craig, trustee, for the the same since the year 1900. The plaintiff also alleges that the defendants claim some interest in the lands, but that the same is wrongful and not of right. The defendants, for answer to the complaint, admit the character and description of the lands, and deny all the other allegations of the complaint, and as an affirmative defense allege: That in December, 1912, the property was sold under a judgment obtained by John Trumbull Trumbull. Mr. Trumbull was then attorney against the Port Angeles & Eastern Railroad Company, and that the defendants purchased the lands under that judgment, and claim title thereunder. The reply admits the alleged death of John Trumbull, who obtained the judgment, but denies all the other allegations of the affirmative answer. Upon these issues the case was tried to the court without a jury. Findings were made in favor of the plaintiff. A decree was entered, quieting the title in the plaintiff. The defendants have appealed.

for the railroad company. After the trustee above named had acquired title from the state, sales of some of the lands were made to other parties, and deeds were executed by the trustee. In February, 1912, Mr. Craig died, his estate was probated, and Flora E. Craig, his wife, was appointed as administratrix thereof. In that estate she presented a petition to the superior court, stating, in substance, that the property now in suit was held by David W. Craig, in trust for the persons named in the complaint in this case The principal facts in the case are not in as beneficiaries; that Mr. Craig had no indispute. They are record facts. It is admit- terest therein. She asked for the appointted that the Port Angeles & Eastern Railroad ment of the plaintiff as trustee to hold the Company, through its treasurer, Arthur Shute, property instead of the deceased. At the on September 1, 1899, entered into several same time powers of attorney from persons contracts with the state of Washington to claiming to be cestuis que trust were filed, purchase the lands described in the com- authorizing the appointment of the plaintiff, plaint, and other lands. These contracts William B. Ritchie, to act as trustee. Thereprovided for annual payments extending over upon the superior court made an order, dia period of eight years. The amount due recting the administratrix to execute a deed upon the contracts each year was $800, and of the property to the plaintiff as trustee. interest. The railroad company made the A deed was subsequently executed. Therefirst payment upon the contracts. Thereaft- after on December 12, 1912, John Trumbull er, and two days before the next payment took a default judgment against the Port became due, when the state could forfeit the contracts if the payment was not made, the contracts, 15 of them, were assigned by the railroad company to David W. Craig, as trustee. The consideration named in the assignment was $1. These assignments were acknowledged before John Trumbull, since deceased, who was then a notary public. When these assignments were submitted to the commissioner of public lands of the state, he refused to approve them unless the parties for whom the land was held were named. Thereupon Mr. Craig, the trustee, to of Washington. It is argued by the appel

Angeles & Eastern Railroad Company in the sum of $19,918.25, and costs. An execution was issued upon that judgment, and levied upon the tidelands now in dispute. They were sold at sheriff's sale, and bid in by the defendants, heirs of John Trumbull. On the 24th day of February, 1914, a sheriff's deed was issued to the defendants.

[1]

These facts are all admitted in the case. It is plain, we think, that the legal title to this property rests in the plaintiff. His title is deducible of record from the state

154 P.-52

lants that the beneficiaries of the trust are true that the original trustees were officer not the same as the beneficiaries mentioned of the railroad company. It is probably true in the letter from Mr. Craig to the commis- that the railroad company at that time waS sioner of public lands, and that therefore it insolvent. But we think the record fairly was error for the trial court to receive in shows that at the time of the assignment, the evidence the contracts made by the state for second installment of the purchase price for the sale of the lands with the assignments the lands due the state would be due within thereon. There is no merit in this conten-two days, and the railroad company had te tion, because it was not necessary for the money with which to continue the contracts. cestuis que trust to be made parties to the And the evidence fairly shows, also, that action. The statute provides, and this court at that time the railroad company entered has held, that the trustee of an express trust into a contract with these officers, to the may maintain an action in his own name. effect that these officers would make pay Carr v. Cohn, 44 Wash. 586, 87 Pac. 926. Itments becoming due, that the railroad com is of no importance to the appellants who pany would repurchase the property by paythe beneficiaries of the trust are, so long asing the amount which those officers had adthe beneficiary is not the railroad company, | vanced, and that if repurchase was not made through whom they necessarily must claim. within three years, then the rights of the [2] The appellants also argue that the court railroad company would be forfeited. There erred in receiving in evidence the probate rec-is no evidence that the railroad company ord, wherein the court ordered Mrs. Craig, the wife of the deceased trustee and the administratrix of his estate, to execute a deed to the respondent in this action. If we understand the contention, it is that the probate court had no jurisdiction to authorize the administratrix to make such a deed. This court has held that the probate court has power to determine all matters necessary to the due administration of an estate; and it certainly has authority to authorize the administratrix to convey property held in trust. In Re Martin's Estate, 82 Wash. 226, 144 Pac. 42, after referring to the case of State ex rel. Keasal v. Superior Court, 76 Wash. 291, 136 Pac. 147 and other cases, we said:

retained any other interest in these con tracts. Six years later the railroad company conveyed all its real estate and personal property to John Trumbull, and did not include therein any of the lands in these contracts. John Trumbull was then the atterney for the railroad company. He, as a notary public, had taken the acknowledg ments of the assignments of the contracts by the railroad company for the lands in dispute, and we have no doubt knew all the circumstances of that transfer. There is no claim made that the railroad company, or any one for it, repurchased the lands, or offered to do so.

We are satisfied from a review of all the facts in the case that the railroad company had no title to or interest in the lands in

"Under the rule of these cases, it is clear that a superior court in a probate proceeding can ex-dispute at the time the judgment of Mr. ercise all of the powers of a court of general jurisdiction. It has power in such a proceeding to determine every matter necessary to the due administration of an estate, and it is its duty to do so when such matters are properly presented

for its consideration."

Trumbull was levied upon these lands. If
the railroad company had no interest, then
of course a sale under that judgment would
convey no interest to the purchaser. We are
satisfied that the respondent holds both the
legal and equitable title, and that the trial
court arrived at a correct conclusion.
The judgment is therefore affirmed.

MORRIS, C. J., and FULLERTON and EL

We are satisfied, therefore, that the superior court had jurisdiction to authorize the making of the deed, and that the deed from the administratrix to the respondent conveyed whatever interest the deceased as trustee had. The respondent, as his successor, therefore stands in the same position as the orig-LIS, JJ., concur. inal trustee. It is plain, therefore, that the plaintiff in this case holds the legal title from the state of Washington to himself, subject to the trust.

CHADWICK, J. (dissenting.) The equitable title to the land was in the railroad company and passed under the execution sale to [3] Before the appellants in this case can appellants. The railroad company could prevail, it is necessary for them to show that have asserted its right at any time. The the Port Angeles & Eastern Railroad Com-deed to respondent and the powers of atpany had some interest in the property at torney gave him no interest, for the parties the time of the sale under the judgment of had no personal interest to convey or proJohn Trumbull against that company. The tect. Craig was trustee for the railroad comappellants attempt to show this by arguing pany, not for the other parties. They were that the original trustees were officers of the all trustees in equity, for the railroad comrailroad company; that there was no consid-pany, and not cestuis que trustent, as is held eration paid for the assignment from the by the majority. railroad company to David W. Craig. It is

For these reasons, I dissent.

A farm lease declared that the land was being offered for sale, and that, if the purchaser demanded immediate possession, the lease might be declared void by the lessor upon giving notice of sale and paying the lessee a reasonable price for all labor expended and the value of any growing crops. The lessee, having planted wheat, mortgaged the growing crop with other personalty. Thereafter the lessor sold the land, and the purchaser recovered possession; the lessee receiving payment for his work and for the value of the growing wheat. Held, that the title to the growing wheat passed, under the terms of the lease, which was superior to the mortgage, to the purchaser, who harvested it, so that neither the purchaser nor the lessor were liable for a deficiency judgment; the other personalty mortgaged not being sufficient to satisfy the mortgage.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. 138.]

Department 2. Appeal from Superior Court, Adams County; Edward C. Mills, Judge.

Action by W. S. Woody against Julius Conner and, others. From the judgment, defendants Wagner and Neufelt appeal. Reversed.

Geo. E. Lovell, of Ritzville, for appellants. Adams & Naef, of Ritzville, for respondent.

by them without any obligation to account therefor to any one.

By.

The cause comes to us upon conceded facts which may be summarized as follows: Appellant Wagner, being the owner of the land upon which the wheat was seeded and grown, leased the same to Conner for the term of six years commencing January 1, 1913. the terms of the lease Conner was to pay Wagner as rent for the land one-third of the crops to be grown thereon. The lease contained, among other provisions, the following:

"It being understood that this land is being offered for sale, it is agreed that, if the sale of the land is made, and the purchaser demanding immediate possession. this lease may be declared void and of no effect by said lessor giving notice of such sale, and paying said lessee a reasonable price (not exceeding $2.00 per acre) for all labor expended in preparing any ground not in crops, and on further payment of the value of any crops which may be growing or immatured."

Conner went into possession of the land. He seeded it to wheat in the fall of 1913 for the crop of 1914. On October 14, 1913, Wagner, having sold and conveyed the land to Neufelt, caused to be served upon Conner two notices as follows:

"You are hereby notified that I have sold all of [describing the land] to A. A. Neufelt, and under the terms of the lease you will be required to give possession of the said premises to the said A. A. Neufelt within ten days from the receipt of this notice. All sums due you will be indorsed on the notes which you gave me and which I now hold.

"Dated this 14th day of October, 1913.
"E. E. Wagner."

"You are hereby notified, that I have pur-
chased the [describing the land], and under the
terms of purchase I hereby demand immediate
possession of the above-described lands.
"Dated this 14th day of October, 1913.
"A. A. Neufelt."

PARKER, J. The plaintiff, W. S. Woody, On October 24, 1913, Conner, being indebtcommenced this action in the superior courted to Woody in the sum of $1,629, executed for Adams county seeking foreclosure of a and delivered to Woody a chattel mortgage chattel mortgage given to him by Julius Conner upon certain live stock, farming implements, and two-thirds of a crop of wheat seeded in the fall of 1913 upon land occupied by him under a lease from the defendant E. E. Wagner, the owner thereof, which land was thereafter conveyed to the defendant A. A. Neufelt. The case being tried and submitted upon the merits, on November 24, 1914, the superior court rendered a personal judgment against the defendant Conner for the full amount of the debt secured by the mortgage, decreed foreclosure and sale of all the mortgaged property, excepting the crop of wheat, and rendered a personal deficiency judgment against the defendant Wagner, evidently because of the appropriation | of the crop upon its maturity by him and Neufelt, his grantee. From this disposition of the cause the defendants Wagner and Neufelt have appealed to this court, claiming that the wheat was lawfully appropriated

upon certain live stock, farming implements, and two-thirds of the crop of wheat which he had seeded upon the land shortly prior thereto. This chattel mortgage was duly filed for record, and Wagner had actual knowledge thereof prior to November 1, 1913. On October 25, 1913, Wagner and Conner being unable to agree upon the amount due Conner under the terms of the lease above quoted, because of the sale of the land to Neufelt and the termination of the lease, Wagner and Neufelt commenced an action in the superior court for Adams county for possession of the land and to have determined the amount due to Conner for which he should be credited upon the indebtedness due from him to Wagner because of the termination of the lease. That case was tried, and in April, 1914, judgment rendered therein by the superior court determining the amount Conner was entitled to because of the sale of the land to Neufelt

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

and the termination of the lease. Thereupon, | title to unsevered crops even as against a in compliance with the judgment so rendered, mortgagee of such crop. This latter holding Wagner delivered to Conner certain notes however, has no application here, since Conevidencing indebtedness due from Conner, ner's leasehold interest in the land and the and also paid Conner the additional sum of unsevered crop passed back to Wagner, the $65.75, thereby fully complying with the lessor and owner of the land, by termination terms of the judgment and fully paying all of the lease in pursuance of its express teras. sums due Conner because of the sale of the 24 Cyc. 1071; Gregg v. Boyd, 69 Hun, 588, land and the termination of the lease. Neu- 23 N. Y. Supp. 918; Gammon v. Bull, felt has been in possession of the land at all Iowa, 754, 53 N. W. 340. times since the rendering and satisfaction of that judgment. In the summer and fall of 1914, Neufelt harvested, hauled to market, and sold the whole of the crop of wheat which had been seeded by Conner in the fall of 1913 while in possession of the land under the lease.

[1, 2] We are unable to see any sound legal grounds upon which the personal judgment rendered by the court against Wagner can be rested. When he sold and conveyed the land to Neufelt, gave Conner notice thereof, demanded possession of the land, and paid to Conner all sums due to Conner because of the cancellation of the lease, he became entitled to the land and all growing unsevered crops thereon. All of this occurred long before the maturity and harvesting of the That it occurred after the giving of the chattel mortgage upon the crop by Conner does not militate against the title to the crop acquired by Wagner and Neufelt upon the sale of the land to Neufelt and the termination of the lease. Manifestly the mortgage rights of Woody were subject to the terms of the lease, and were liable to be defeated by its termination under the provisions thereof above quoted.

crop.

Counsel for Woody seem to proceed upon the theory that Wagner and Neufelt have onlawfully appropriated the crop as against Woody, the mortgagee thereof. We have seen that Wagner and Neufelt acquired possession of the land and caused termination of the lease by paying to Conner all he was entitled to under the terms thereof, long before the crop was matured or severed from the soil. Now, Conner's title to the crop was at al times, until it was actually severed from the soil, subject to acquisition by Wagner and his grantee under the express terms of the lease. It seems quite clear to us that the giving of the mortgage by Conner to Woody could not in the least curtail this right of Wagner and his grantee, nor were they required to pay any attention to the rights of Woody as mortgagee. They were not garnisheed, nor did they hold anything in trust for Woody as mortgagee. What they did was in strict compliance with the terms of the lease under which Conner at all times held the land, and subject to which Woody took his mortgage on the crop.

The judgment against appellant E. E. Wagner is reversed. The record before us does not show the rendering of any judgment, in The passing of unsevered crops with the terms, against appellant A. A. Neufelt, but, title to land upon transfer of title thereof in so far as the decree and judgment might is elementary law. It is so when the trans-be construed as rendering Neufelt liable to fer is by an ordinary deed of conveyance executed by one having perfect title to the land. The rule is stated in the text of 12 Cyc. 977, as follows:

"According to the great weight of authority, crops so far partake of the nature of realty that in the absence of reservation or exception they pass by a sale or conveyance of the land as appurtenant thereto, whether unripe or matured, so long as there has not been a severance, actual or constructive, of such crops from the land." 8 Ruling Case Law, 358.

It is so when the title passes by sale under a foreclosure of a mortgage upon the land, when the mortgagor is the owner, and his title to the crop is not impaired by some leasehold or contractual interest in some other person. Jones v. Adams, 37 Or. 473, 59 Pac. 811, 62 Pac. 16, 50 L. R. A. 388, 82 Am. St. Rep. 766; Reily v. Carter, 75 Miss. 798, 23 South. 435, 65 Am. St. Rep. 621; McMaster v. Emerson, 109 Iowa, 284, 80 N. W. 389; 8 Ballard, Real Property, § 101. It is so when the title of a lessee passes back to the lessor by forfeiture of the leasehold interest, and it has been held that the voluntary surrender of the leasehold interest to the lessor carries

any extent, it is reversed.

MORRIS, C. J., and BAUSMAN, MAIN, and CHADWICK, JJ., concur.

(89 Wash. 502)

WHITE v. POWERS et al. (Supreme Court of Washington. Feb. 5, 1916) 1. CONSTITUTIONAL LAW 309-LIENS 19-DUE PROCESS OF LAW-DEPRIVATION OF PROPERTY-NOTICE.

Rem. & Bal. Code, § 1157, provides that a lien on chattels for labor and material may be enforced against the owner or persons interested by notice and sale in the same manner that a chattel mortgage is foreclosed, or by decree of any court exercising original equity jurisdiction. Section 1105 provides the form of notice on fore closure of a chattel mortgage. Section 1106 provides that such notice shall be placed in the hands of the sheriff or other proper officer and personally served in the same manner as provided for by law for the service of a summons, provided that if the mortgagor cannot be found is the county of foreclosure, the general publication directed in section 1107 shall be sufficient. Seetion 1107 provides for publication as for sale on execution after notice to the mortgagor. See

On July 9, 1914, appellant filed his complaint against respondents, alleging the foregoing facts, and further alleging that at all the times mentioned Nelms was a resident of Spokane county, Wash., and was not at any of the times mentioned present in Lincoln county; that no notice of any kind was given to Nelms, except the posted notice of sale; that defendants obtained possession of the automobile by reason of some transaction with Johnson, and that in so doing they and Johnson ignored the rights of. Nelms and of appellant, and respondents [Ed. Note. For other cases, see Constitutional claim to have the title to the automobile by Law, Cent. Dig. §§ 929, 930; Dec. Dig. reason thereof and of the lien and foreclo309; Liens, Dec. Dig. 19.]

sure proceedings of Johnson, and not otherwise; that all of the proceedings to establish and foreclose the chattel lien were had under and by virtue of statutes relating thereto (specifically mentioned), but that the statutes relied upon are unconstitutional and void under the Constitution of Washington and the Fourteenth Amendment to the Con

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