of the parties can have no influence in determining whether or not the judgment is one for the recovery of money within the meaning of our statute relating to appeals. It is no doubt true, as argued by the respondent, that the rights of the parties would often be best subserved if it was left to the court to fix the amount of the bond upon appeal in such cases; but, the legislature having provided that the bond should be in a certain amount whenever the judgment was for the recovery of "money," and not that such a bond should be required when the judgment was for the recovery of "money only," we cannot construe the act as though this additional provision had been inserted, and must hold that the statutory bond must be given whenever the judgment is for the recovery of money, even though such recovery is coupled with the granting of other incidental relief.

Respondent contends that the provision as to the giving of a bond in double the amount of the judgment applies only in cases where the appeal is taken by the one who is liable to pay the judgment; but there is nothing in the statute which warrants this contention. It makes no distinction in regard to appeals by different parties affected by the judgment, and, the statute having made no such distinction, it is not for the courts to make it. Besides, the effect upon the owner of the judgment would be the same if its execution were stayed in the interest of a party not bound to pay it as it would if the stay were in the interest of such party. There may be necessity for legislation upon this question, but until there has been such legislation a judgment for the recovery of money can only be stayed by a bond by or on behalf of the appellant in an amount double the judgment. The order of the superior court fixing the amount of the supersedeas bond will be reversed, and held for naught.

after breach of lease and notice to quit, wrongfully continued in possession, did not, as to existing leases, impair the obligation of contracts within the prohibition of the federal and state constitutions.

2. In an action to foreclose a mortgage of a tenant's interest the court had no jurisdiction to appoint a receiver of the landlord's as well as the tenant's interest in the premises.

3. Notice to quit, given a tenant, is binding on a receiver of the tenant's interest, subsequently appointed in an action to foreclose a mortgage of such interest.

4. In an action by a landlord for the unlawful detention of the premises, under Act March 7, 1891, the fact that the judgment declared the lease forfeited, though no forfeiture was asked, was immaterial, since, under that act, by performance of the conditions of the judgment, the lessee could be restored to his rights under the lease, notwithstanding the for feiture was adjudged.

5. The facts that a landlord was unnecessarily made a party to an action to foreclose a mortgage of the tenant's interest, and a receiver of his as well as the tenant's interest appointed in the action, did not deprive the landlord of his right to sue for the unlawful detention of the premises.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Sarah Woodward, individually and as executrix, against Gustave Winehill, Fred R. Rowell, receiver, and others. From a judgment for plaintiff, the receiver appeals. Affirmed.

Donworth & Howe, for appellant. Frank P. Lewis, for respondent.

HOYT, C. J. This action was brought under the landlord and tenant act of March 7, 1891. Laws 1891, p. 179, c. 96. A demurrer was interposed to the complaint, and upon the action of the court in overruling the same is founded the first claim that the judgment should be reversed. It appeared from such complaint that the lease under which the property sought to be recovered was held was executed prior to the passage of the act of March 7, 1891, and upon the claim that by reason of that fact the provisions of said act were not applicable is founded the principal argument that the complaint is insufficient. The contention of the appellant upon this question is that the act of 1891 so changed the remedies available to the landlord that the value of a lease executed before its passage would be substantially affected if its provisions were made applicable to such a lease, and that for that reason the change in the statutory provisions, though in form relating only to the remedy, had such effect upon the contract that they were unconstitutional if applied to leases in existence at the time of the passage of the act. It is claimed that the law in force at the time the lease in question was executed gave to the lessee certain rights which were substantially changed by the provisions of that act. That legislation may so change the remedy incident to a contract as to make such change unconstitutional when applied to those executed before its passage may be conceded, but that

such is the case in no manner interferes with the general rule, which is so well established that the citation of authorities in its support would be unwarranted, that a change in the remedy incident to existing contracts does not so affect rights thereunder as to make the law effecting the change unconstitutional when applied to such existing contracts. It is only when such remedy is so interwoven with a substantial right flowing from the contract that any change therein will substantially affect the value of the contract that rights thereunder will be impaired within the meaning of the provision in the constitutions of the United States and of this state which prohibits the legislature from impairing the obligation of contracts. If the remedy which the landlord had prior to the act of 1891 was so changed by that act as to deprive the lessee of any substantial right growing out of the lease, though such deprivation was under the guise of a change in the remedy, such change, if applied to existing leases, would be void. But, in our opinion, the change complained of was not of this kind. Neither the remedies afforded the landlord under the law in force at the time the lease in question was executed, nor those under the act under consideration, could be said to have been provided for in the contract of lease. The most that can be said is that the penalties imposed under certain conditions flowing from the violation of the terms of a lease were changed by the act of 1891. But these penalties did not arise simply upon a violation of the terms of the lease. They were only imposed upon a tenant who, after the violation on his part of the terms of his lease, wrongfully continued in possession of the leased property; and the penalty was not imposed for the violation of the terms of the lease, but for the wrongful act in holding possession after notice to quit, which such violation had entitled the landlord to give. The law of 1891, for that reason, made no change in the rights of the parties under the lease. The only change was in the penalty which the legislature had seen fit to provide for the wrongful act of holding possession of property after the violation of the terms of the lease by the tenant, and after notice to quit because of such violation. Such wrongful holding in the case at bar was long after the passage of the act of 1891. Therefore the tenant must be presumed to have held over with full knowledge of the fact that his wrongful act in so doing would subject him to the penalties provided for in the act of 1891.

The contention of the appellant is therefore met and overcome upon the sole ground that the act which is punished by the imposition of the penalties complained of is so distinct from the lease that it has no connection with contract rights thereunder. But the law imposing such penalties can, under the authorities, be sustained upon other and broader grounds. If it should be held that the penal

ties imposed are on account of the violation of the terms of the lease, it would, nevertheless, under the authorities, be competent for the legislature to change the penalties provided for by the law in force at the time the lease was entered into. If the legislature could not increase the penalty which could be imposed upon the tenant for the reason that such increase would infringe his rights under the contract of lease, it must necessarily follow that it could not decrease such penalties, for the reason that such decrease would infringe the rights of the lessor under such contract of lease. But it has been often held that the legislature may thus decrease penalties. The general doctrine upon that subject is well stated in a note on page 759 of 3 Am. & Eng. Enc. Law, in the following language: "When a party, by statutory provisions, becomes entitled to recover a judg ment in the nature of a penalty for a sum greater than that which is justly due to him, the right to the amount which may be recovered does not become a vested right until judgment is obtained; hence a repeal of the statute conferring the right will purge all past transactions of their penal character under it, unless they have already passed to judgment." And in support of the doctrine thus announced, such a long list of cases, from both the state and federal courts, is cited, as to show that it is beyond question. In Cooley on Constitutional Limitations, at page 351, the following statement is made: "A law abolishing distress for rent has been sustained as applicable to leases in force at its passage;" and the cases which have so held are cited in the margin, and none are cited to the contrary proposition. That the right to recover rent by distress is more intimately connected with the contract of lease than is the one to hold over after notice to quit is evident. Hence, if legislation upon that subject can be applied to existing contracts and sustained, with better reason can that relating to the penalty for holding over be so applied and sustained. In the case of Parmelee v. Lawrence, 44 Ill. 405, it was deciued that it was within the power of the legislature to take away the right of the maker of a note to recover as a forfeiture three times the amount of interest paid in excess of that authorized by law, and that the statute which did this was not unconstitutional when applied to notes made before its passage. In its decision the court stated that the forfeiture was in the nature of a penalty, and that the law recognized no vested right in a penalty. The question presented in this case falls directly within the principle announced in the cases above referred to. The changes complained of did no more than to change the penalty for the violation of a contract, and, since there can be no vested interest in a penalty, a law which has only the effect to change the penalty growing out of such violation has no effect upon vested rights. It follows from what we have

said that, in our opinion, the law of 1891 did not infringe any vested right under leases executed before its passage.

The other objections to the complaint had no substantial foundation. The demurrer was properly overruled.

The next action complained of is the sustaining of the demurrer to the affirmative defense of the appellant. This defense is too lengthy to allow of its being set out in this opinion, and, unless it is, little good would be accomplished by saying more than that we think the construction placed upon the answer by the superior court was correct. The fact that a receiver had been appointed in a suit brought to foreclose a mortgage against the lessee could not deprive the lessor of the right to obtain possession of the premises by a proceeding under the forcible entry and detainer act, and the fact that without any necessity therefor the lessor was made a party to that proceeding could not enlarge the rights of the receiver appointed in the action to foreclose the mortgage.

But one other question is presented of which we deem it necessary to take notice. It appears from the record that no notice to surrender possession was ever served upon the receiver, and it is claimed at before the proceeding could be instituted it was necessary that such service should have been made. If the receiver had been appointed at the time service upon the lessee was sought to be made, there would be force in this claim; but it clearly appears that the notice which was the foundation of this action was served some days before the receiver was appointed, and it must be held that such service was binding upon the receiver. The effect of his appointment was to place him, in that respect, in the shoes of the lessee, and he took possession of the property under the lease, subject to the rights thereunder which had accrued by an action in pursuance of law taken by either party. If no receiver had been appointed, no further action would have been required on the part of the lessor before bringing the action; and the fact that such receiver was appointed to look after the rights of the lessee and his creditors could take nothing from the rights of the lessor. If we could hold, as contended for by the appellant, that the receiver was appointed to represent the rights of both the lessor and the lessee, the facts set up in the affirmative defense might be material; but, in our opinion, it was not competent for the court, in an action to foreclose a mortgage which covered only the interests of the lessee, to appoint a receiver, who should represent not only that interest, but also that of the lessor.

The claim that that portion of the judgment which declared a forfeiture of the lease cannot be sustained for the reason that no forfeiture was asked for in the complaint is without substantial merit. Sufficient appeared upon the face of the complaint to show

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STATUTE OF FRAUDS PAROL AGREEMENT TO DEVISE LAND.

A parol contract, by which a father agreed, in consideration of the surrender to him by a daughter of her interest as heir in the unadministered estate of her mother, to devise to the daughter on his death one-fourth of his estate, part of which consisted of land, was unenforceable, as being within the statute of frauds, in the absence of a showing of part performance by the father before his death. Dunbar, J., dissenting.

Appeal from superior court, Walla Walla county; William H. Upton, Judge.

Action by Eva Swash against B. L. Sharpstein, executor of Orley Hull, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

John L. Sharpstein and Wellington Clark, for appellant. Blandford & Gose, for respondent.

SCOTT, J. The plaintiff brought this action against the defendant, as executor of the last will of one Orley Hull, deceased, to compel said executor to perform an alleged parol agreement entered into between the plaintiff and said Hull, whereby he agreed to devise to her one-fourth of his estate at the time of his death. Said Orley Hull and one Mary Hull were husband and wife, and plaintiff was their daughter. Mary Hull died intestate on the 11th day of December, 1886, at which time said parties were the owners of a large and valuable estate, situated in the territory of Washington, and mostly in Walla Walla county, all of which was community property. No attempt was made to administer upon the estate of said Mary Hull until March, 1890, at which time the plaintiff and one of her sisters, a Mrs. Swezea, petitioned for the appointment of an administrator. The estate at that time was, and from the death of Mary Hull had been, in the possession of the husband. A contest over the appointment of an administrator was had, which resulted in the appointment of one Winans, and an appraisement of the estate was made and returned to the superior court of Walla Walla county, which showed her estate to be worth less than $3,000. Upon the return thereof the plaintiff and her said sister began proceedings to have a large amount of other property, including

the homestead upon which said Hull and wife resided, and other real estate, added to the inventory of said estate. While these proceedings were pending, said Orley Hull began a suit against this plaintiff and her said sister in the superior court or Walla Walla county, for the purpose of having said homestead, which had been obtained under the United States homestead laws declared his separate property. A decree was rendered in his favor, whereupon this plaintiff and her said sister gave notice of an appeal to the supreme court. While they were perfecting the same it is claimed that the parol agreement in question was entered into between the parties, which the plaintiff contends was substantially performed by her. Said Orley Hull died on the 21st day of April, 1892, leaving a will in which he bequeathed to this plaintiff the sum of $500, and no more, of his estate, which was of the value then of $40,000 or more, and consisted of both real and personal property. He had taken a second wife, to whom he left one-fourth of his estate, and the remainder of it was devised to two other daughters, one of whom was Mrs. Swezea, who had joined with the plaintiff in the previous litigation against him; said three daughters being his only surviving children. This action was first tried to a referee in the superior court of Walla Walla county, who found against the plaintiff, but his findings were set aside by the judge of said court, and a decree was rendered in her favor, from which this appeal is prosecuted by the defendant. Several sets of briefs have been filed herein, and the cause has been twice argued to this court. A number of difficult questions have been presented and ably argued on both sides, but we have not found it necessary to discuss all of them in arriving at a determination, owing to the view we have finally taken of the law applicable to the case.

The making and terms of said contract, as alleged by the plaintiff, were as follows: That during the pendency of the proceedings aforesaid upon the part of plaintiff and Mrs. Swezea to have the other property added to the inventory of their mother's estate, and of their appeal to the supreme court from the ac tion brought by their father to have the homestead declared his separate property, her fa ther proposed to her and Mrs. Swezea that if they would discontinue all further proceedings in the prosecution of said appeal, and all further proceedings to have said other property added to the inventory of her mother's estate, and would agree to a settlement and termination of the administration of said estate and the discharge of the administrator, and would give and turn over to their father all the right, title, and interest which they, and each of them, had in and to the estate of their said mother, with the full custody and management, control, and power of alienation thereof, and in no way interfere with or obstruct his full and complete management and control of the same, he would, on his part,

devise and bequeath to the plaintiff and to Mrs. Swezea, each, by his last will and testament, a one-fourth interest in his whole estate at the time of his death; and acceptance and performance of this agreement by the plaintiff and Mrs. Swezea is alleged. It appears, however, that the only direct act performed was the signing of a stipulation by said parties to discharge the administrator, and terminate the administration of the estate of Mary Hull. But it appears that nothing further was done by either the plaintiff or Mrs. Swezea in the prosecution of the appeal from the judgment rendered in the action aforesaid, and that plaintiff lost her rights therein by reason of the lapse of time, and that thereby the decree which had been rendered in the superior court became final, and settled the title to the homestead tract in her father. It is conceded that neither the plaintiff nor Mrs. Swezea gave, or offered to give, their father a deed of their interest in any of the lands, and it does not appear that he ever asked for one. The record title to all of said lands stood in his name, and he at all times after the decease of their mother was in full and exclusive possession thereof. It also appears that several tracts of the remaining lands other than the homestead, and a large amount of personal property, were at various times sold by him, and the proceeds of one 80-acre tract were divided between the plaintiff and Mrs. Swezea; and it is contended by the plaintiff that by reason of her acquiescence in the sale of said personal and real property and a failure to object thereto, and by reason of the lapse of time, etc., the title so attempted to be conveyed by her father became perfected in the respective grantees, and therefore no other conveyance relating thereto can at this time be held to be necessary. It appears, however, that one tract, known as the "Eureka Flat Farm," which was also owned by her father and mother as community property, still remains and is a part of the property of said estate. As to this it is contended by the plaintiff that it was never understood by any of the parties that a deed from the plaintiff and Mrs. Swezea to her father was necessary to vest the complete title to any of these lands in him, and that, as he had never asked for one, and had always had the full and exclusive management and control of said real estate, and dealt with it as his own, the failure to execute such a deed, if one was necessary, should not bar her of her right to a performance of the contract upon his part at this time; and, furthermore, that if the court should hold that such a deed is necessary, she asks to be permitted to give one at this time. It does not appear that Mrs. Swezea is willing to give such a deed, but, if the contract can be regarded as a severable one so far as plaintiff is concerned, and has been sufficiently established in law, we could see no objection, under the circumstances of this case, to her giv ing such a deed now.

The making of this contract is disputed by the defendant, but little or no testimony was introduced to contradict the testimony upon the part of the plaintiff. The attack of the defendant was mainly directed against the validity of the contract under the statute of frauds re-enacted here, and the important question to be determined is whether there had been a sufficient performance of it, conceding that it was entered into, to entitle plaintiff to a specific performance thereof. The proof upon the part of the plaintiff was clear and explicit as to the terms of this contract, but the only performance of it upon her part was in signing the stipulation to discharge the administrator and terminating the administration of her mother's estate, and in allowing her appeal from the action aforesaid to lapse. It does not appear that her father did anything towards the performance of said contract, and under its terms there was nothing for him to do except to devise to the plaintiff and Mrs. Swezea ore-fourth of the estate of which he died seised. Upon the termination of the administration of her mother's estate, it appears that certain of the personal property was divided between the parties, of which the plaintiff received a portion; but the division of this personal property, and the further division between plaintiff and Mrs. Swezea of the proceeds of the 80-acre tract afterwards sold by their father, cannot be considered as a part performance of the contract, for by the terms thereof he was to have all of said property, both real and personal; and such division was, in fact, inconsistent with the contract. Nor were these matters claimed by the plaintiff to be a part performance. She claimed that the same was a gift to her, and that the expressed purpose of her father in giving said property to Mrs. Swezea and herself was to place them upon an equal footing with the other sister, to whom he had previously given property.

It satisfactorily appears to all the members of this court who sat upon the trial of the cause that some kind of a contract was entered into between the parties at the time alleged. The parties were at that time relying upon their legal rights, and undertaking to maintain their claims in the courts, and were proceeding adversely to each other; but upon the making of this agreement all of these proceedings were discontinued, and peace and harmony were established between them. By allowing said appeal to lapse, plaintiff lost valuable rights, for, while the question was then undetermined, under recent decisions of this court it has been held that a homestead acquired under the United States homestead laws is the community property of the husband and wife; and, if the testimony offered by the plaintiff in support of this contract could be considered as legally sufficient, or would show enough done to authorize its enforcement, a majority of the members of the court who sat upon the trial could not agree to set aside the contract, or

find it otherwise than as testified to by the witnesses for the plaintiff, which would result in an affirmance of the judgment. One of the strongest circumstances in support of the making of the contract as alleged is the fact that Mrs. Swezea, whose interests were directly and adversely affected by it, if a valid one was entered into, was not called by the defendant to dispute it, or testify in relation thereto. The circumstances connected therewith all go to show that one was entered into, and that the plaintiff is acting in good faith in the transaction, for, if advocating a false claim, she would probably have fixed a different time for the making of the contract, and not one when Mrs. Swezea was present and participated therein; and, considered only from the standpoint of the apparent truthfulness of the testimony, the claim made by the plaintiff appeals to the court so strongly that relief would be gladly extended were we authorized to do so under the law. But it must be remembered that a just claim cannot always be enforced by the courts, and, furthermore, that it was the plaintiff's father who undertook to make this unequal and seemingly unfair disposition of his property, and the law recognizes such a right, generally, in the parent. The reasons which led thereto in this instance are unknown to us, and, of course, are none of our

concern.

But, conceding that the contract was en tered into as testified to by the plaintiff's witnesses, was there a sufficient part performance to avoid the statute of frauds? If not, and conceding, also, that there was a substantial performance upon the part of the plaintiff, it is difficult to conceive what more could have been done during the lifetime of the father to give it effect against the statute, unless the making of the will would have relieved it of the objection, even if aft erwards revoked. But no definite time was fixed for the making of such will, and there was no proof that any will was made other than the one probated. The law is well settled that a party may enter into a valid contract to make a will in favor of another party, and also that a parol contract to make such a will may be sufficiently performed during the lifetime of the parties, so that a court of equity will compel a specific performance. But there is a conflict in the cases where the kind and degree of part performance necessary for such a purpose is considered. Some of the cases cited by the plaintiff support her contention that there was a sufficient part performance to avoid the statute of frauds. One of the strongest is probably that of Johnson v. Hubbell (decided in New Jersey in 1855) 10 N. J. Eq. 332; although the facts in that case showed a greater degree of part performance than appears in this, for there deeds were executed, and the father obtained title to a tract of land by a conveyance from his daughter, which his son had conveyed to the daughter in pursuance