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Fred Bansman and Bausman, Kelleher & Emory, for appellants. Thompson, Edsen & Humphries, for respondent.

HOYT, C. J. Appellants stood upon their demurrers to the amended complaint, and judgment was rendered against them for want of answer; hence the only question presented upon their appeal is as to the sufficiency of the complaint. But two reasons are suggested why such complaint is insufficient. One is that there is no sufficient allegation contained therein to show that the will under which the executor was acting at the time he executed the note and mortgage to plaintiff was so conditioned as to authorize such executor to proIceed with the administration of the estate, under the provisions thereof, without the intervention of the probate court. The allegation in the complaint was that the will authorized and directed said executor to administer upon said estate without the intervention, order, or advice of any court, and to fully execute all its terms and provisions, and was sufficient for the purpose for which it was intended. It is not in the exact language of the statute, in that it does not state that the will contained a direction that no letters testamentary or of administration should be required; but the statement that the executor was to discharge all the provisions of the will without the intervention of any court, and without its order or advice, sufficiently shows that no such letters were required in the settlement of the estate.

The other reason suggested why the complaint is insufficient is that it does not appear therefrom that the making of the note and mortgage upon which the action was founded was within the power of the executor and trustee under the will. The allegations in that respect are not as full and satisfactory as they should have been; but when it is stated in one part of the complaint that the person named as executor and trustee executed the note and mortgage, and in another part that he had executed and performed all the terms and conditions of said will, such allegations must be taken together; and when so taken and construed in connection with the further fact, which appears from the complaint, that it was the intention of the testator that his estate should be administered without the aid of any court, it should be inferred therefrom that the execution of the note and mortgage was within the powers conferred by the will. This construction is sustained by the further allegation in the complaint that the action of the executor and trustee had been fully confirmed by the court, for. the reason that he had fully discharged the trust imposed by the will.

It is claimed by appellants that the allegation that the estate had been administered in accordance with the provisions of the will, and the finding of the court to that ef

fect, could not aid the allegations as to the authority conferred upon the executor and trustee by the terms of the will, for the reason that all of its terms might have been complied with, even although the execution of the note and mortgage was not authorized. To sustain such a claim would require too narrow a construction of the language used. When certain things have been done in apparent pursuance of a power, and, in connection with the allegation as to what has been done, it is stated that the power conferred has been fully carried out, it is only reasonable to infer therefrom that the doing of the thing alleged was one of the tuings necessary to a proper discharge of the power.

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Having come to this conclusion as to the interpretation to be given the allegations of the complaint, there is no question of law left for consideration, as it is conceded by the appellants that if the will was which authorized the executor and trustee to proceed without the intervention of the court, and by its terms authorized the execution of a note and mortgage by the executor, and these facts are shown by allegations in the complaint, their demurrer was properly overruled. The judgment will be affirmed.

DUNBAR, SCOTT, ANDERS, and GORDON, JJ., concur.

(11 Wash. 337)

LA SELLE et al. v. WOOLERY, Sheriff, et al. (Supreme Court of Washington. March 7, 1895.)

DEBT INCURRED IN ANOTHER STATE-ENFORCEMENT AGAINST COMMUNITY PROPERTY.

Where a debt incurred by a husband in a sister state which does not recognize community property, would have been enforceable against property which from the nature of its acquisition would have been community property in this state, it is by comity enforceable in Washington against community property.

Appeal from superior court, King county; J. W. Langley, Judge.

Action by Marian E. La Selle and another against J. H. Woolery, sheriff, and another. There was judgment for plaintiffs, and defendants appeal. Reversed.

Shank & Smith, for appellants. Remington & Reynolds, for respondents.

HOYT, C. J. Appellant William F. Collins, in a suit brought in King county against the respondent William La Selle, duly recovered judgment. To this action and judgment the respondent Marian E. La Selle, wife of said William La Selle, was not a party. Execution issued on said judgment, which was placed in the hands of J. H. Woolery, sheriff of King county, the other appellant. He made a levy upon a piece of real estate situated in King county, of which the paper title was in the name of said Marian E. La Selle. This suit was then brought by the re

ness of which the community would have been entitled to the benefits. Is such presumption confined to debts incurred in this state? There can be little reason for so holding, for while it is true that it will not be presumed that a debt incurred elsewhere could be enforced against community property as such, for the reason that in most of the other states property of that kind is unknown, yet it is but reasonable to presume that under the laws of any of the states of this Union the business of the husband, though it may be in form for his own benefit, and relate only to property of which he is the legal owner, is in reality for the benefit of himself and his wife as a family, and that a liability incurred on account thereof is one which affects the substantial interests of the wife as well as the husband. This being so, there would seem to be good reason for holding that the presumption as to the liability of community property for the debts of the husband alone should extend to those incurred outside of as well as within this state. If we should hold this to be the law, it would probably make it unnecessary for us to discuss any other question raised by the briefs, since we are inclined to agree with the contention of the appellants that there is no sufficient allegation in the complaint to overcome the presumption in favor of the judgment. This question is, however, of such an important nature that it should only be decided in an action in which the rights of the parties can only be ascertained by its determination. We shall, therefore, make no further suggestion in relation thereto in this

spondents, and thereby they sought to enjoin, to the liability had no relation to any busithe sale of the property levied upon, and to have it decreed that such property was not subject to the lien of the judgment. It was conceded that the property, though standing in the name of the wife, Marian E. La Selle, was the community property of herself and her husband, William La Selle. It was, therefore, under the rule established by numerous decisions of this court, subject to the lien of the judgment against the husband alone, if the debt upon which such judgment was rendered was that of the community. It is equally well established by the adjudications of this court that such property was not subject to the lien of such judgment if the debt for which it was rendered was the separate debt of the husband. It must follow that the nature of the debt which was the foundation of the judgment is the material question to be determined upon this appeal. If it was that of the community, the sheriff should have been allowed to proceed to satisfy the judgment by a sale of the property. If it was the debt of the husband alone, the appellants were rightfully restrained from proceeding further against the property in question. The foundation of this judgment was one against the husband alone, made and entered in the state of Wisconsin, and the foundation of that one was a liability incurred by the husband to the appellant Collins in the prosecution of his business as a contractor and builder, and proprietor of a sash and door factory, and was for materials sold to him to be used in the construction of houses and to supply his factory. At the time this liability was incurred, and the judgment in Wisconsin rendered, the respondents were living together as husband and wife in the state of Wisconsin. | Afterwards they removed from said state, and from a time preceding the date of the judgment rendered in King county had been living together as husband and wife in this state. The pleadings on the part of the respective parties enter with much detail into the circumstances surrounding these transactions, and also set up such of the statutes of Wisconsin as to the pleaders seemed necessary to determine the law of that state upon the question of the rights of the husband and wife to property there acquired, and upon the question of its liability for debts contracted by the husband alone.

Before entering upon a discussion of the rights of the respective parties growing out of the law of Wisconsin in relation to the liability of property for the debts of the husband, it is necessary to say a word as to a preliminary question. It has been held that under the laws of this state a debt incurred by the husband alone is prima facie a community debt, and for that reason is enforceable against the community property, unless it is made to appear by allegation and proof that the transaction which gave rise

case.

The substantial question presented by the facts is as to the status of the debt which was the foundation of the judgment in Wisconsin in reference to the property of the husband, or the husband and wife, situated in that state. It appears from the statutes set out in the answer that in that state there is no such thing as community property, as understood here, nor is there any such thing as separate property of the husband, as defined by our laws. The wife alone could own separate property, and the provisions in relation to its acquisition were substantially the same as in this state. All other property was that of the husband, whether it was acquired in such a manner as to make it, under our laws, his separate property, or that of the community. And all of his property, under the laws of that state, could be subjected to the payment of debts incurred by him alone. It will be seen from these provisions that a debt incurred by the husband could there be enforced against all of the property acquired by the husband and wife either before or after marriage, excepting such as, under the laws of that state, would be the separate property of the wife. This is substantially the result of the laws of this state as interpreted by former decisions of

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this court. In our opinion, the comity which one state owes to another goes to the substance rather than the form of things. If a certain right is given in one state as to property of a certain nature, comity would require that those rights should be enforced in another state as to property of the same nature, though it might be called by a different name. In the state of Wisconsin, property which was acquired by the joint labors of the husband and wife, though called the property of the husband, was subject to the payment of debts incurred by the husband in the prosecution of business for the support of the family. Property acquired in the same manner in this state belongs to the community, but is subject to a liability incurred by the husband alone in the prosecution of business for the same object. Hence, under the rule above suggested, comity requires that a debt which, under the laws of that state, could be enforced against property which, from the nature of its acquisition, would be that of the community in this state, should be here enforced against property belonging to the community.

ing in the policy of our legislation which will prevent the application of the rule above stated to the facts of this case.

On the con

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Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Otto Stuth was convicted of disturbing a religious society, and appeals. Affirmed. John C. Kleber, for appellant. Milo A. Root, Pros. Atty., for the State.

SCOTT, J. The appellant was convicteá, under section 95 of the Penal Code,1 of dis turbing a religious society. The information, as follows: omitting the formal parts, is "Comes now Milo A. Root, county and prosecuting attorney for Thurston county, Washington, and the court being in session and the grand jury not being in session, and gives the court to understand and be informed that Otto Stuth is guilty of the offense of disturbing a religious society, and the members thereof, when met together for public worship, committed as follows, to wit: He, the said Otto Stuth, at Olympia, in Thurston county, Washington, on or about the 13th day of February, 1894, in and near a room then occupied by a large number of a religious society persons belonging to There is nothknown as the 'Salvation Army,' did use loud and profane language, and did smoke a cigarette, and did refuse to leave said room when requested so to do by the officer of said society in charge, and did, by said language and conduct, disturb said 'Salvation Army,' and the members thereof, they then and there being met for public worship." It is contended that the information is insufficient because it does not charge that the acts were done willfully, and with intent to cause a disturbance. But, leaving out of consideration the question as to whether this was a necessary allegation in the information, the statute not containing the word "willful," we think the point raised is not well taken. The information charges that the appellant, in room occupied by a large number of persons belonging to a religious society, then and there met for public worship, did use loud and profane language, and did smoke a cigarette, and did refuse to leave said room when requested so to do. We are of the opinion that this substantially charges that the acts were done willfully, and with intent to create a disturbance. It would be unnecessary to use the word "willful" if other words of the same import are used. It is further urged that the statute in question is void, as relating to the facts involved in this case, on the ground that it fails to define such crime; and decisions of the supreme court of Indiana are cited to support this contention. But these cases were controlled by a constitutional provision, which reads as follows: "Crimes and misdemeanors shall be defined, and punishment therefor fixed by the stat

trary, the general policy of this state upon
the question of the liability of property of
the community and of the respective spouses
for debts incurred by the husband alone in
the prosecution of any business is in substan-
tially the same line as that of the state of
Wisconsin. But, whether it is or not, so long
as the rights of the parties are adjudicated
under the laws of this state, its citizens have
no ground of complaint, whatever may be the
And since
result as to those of other states.
what we have said has been founded upon
our statute, and the rights adjudicated there-
under have been in the light of the facts
shown by the record, the respondents cannot
complain. The judgment will be reversed,
and the cause remanded, with instructions to
overrule the demurrer to the affirmative de-
fenses pleaded in the amended answer.

DUNBAR, SCOTT, and GORDON, JJ., con

cur.

(11 Wash. 423)

STATE v. STUTH. (Supreme Court of Washington.

1895.)

March 16,

DISTURBING RELIGIOUS SOCIETY-SUFFICIENCY OF
INFORMATION-VALIDITY OF STATUte.

1. An information charging that defendant, in a room then being used for religious purposes, "did use loud and profane language, and did smoke a cigarette, and did refuse to leave the room when requested so to do by the officer" in charge thereof, sufficiently shows that defendant's acts were willful.

2. Pen. Code, § 95, providing that every person who shall disturb any religious society, when meeting together in public worship, shall be fined, is not void, as failing to sufficiently define the erime.

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1 Pen. Code, § 95, provides that every person who shall disturb any religious society, when meeting together in public worship, shall be fined.

utes of the state, and not otherwise." Our constitution has no such provision. We do not think the statute is so indefinite as to render it void for uncertainty in this particular. The word "disturb" has a well-known legal significance. "Disturbance' may be defined to be any conduct which, being contrary to the usages of the particular sort of meeting and class of persons assembled, interferes with its due progress and services, or is annoying to the congregation, in whole or in part." 2 Bish. Cr. Law, § 309. The words "religious society," as used in the statute, have their ordinary meaning, and would include all religious societies or congregations met for public worship, without regard to their being incorporated. "An ordinary Sunday school, where the Bible and religious precepts are taught, is a worshiping assembly, within these statutes." Id. § 305. Affirmed.

HOYT, C. J., and DUNBAR and ANDERS, JJ., concur. GORDON, J., not sitting.

(11 Wash. 277)

BRUNDAGE et al. v. HOME SAVINGS & LOAN ASS'N OF MINNEAPOLIS et al. (No. 1,383.)

(Supreme Court of Washington. March 1, 1895.)

APPOINTMENT OF RECEIVER-POSSESSION OF MORTGAGEE ESTOPPEL-AFFIDAVITS.

1. A mortgagor who, in consideration of an additional loan, places the mortgagee in possession, under an agreement that he may apply the rents as therein directed, cannot oust the mortgagee and have a receiver appointed on mere allegations, not sustained by proof, of fraud and mismanagement, and that the property will be wasted, in the absence of proof that the mortgagee is insolvent or that the debt has been paid.

2. The fact that the contract under which the mortgagee took possession was not formally signed by him after it was signed by the mortgagor will not deprive the mortgagee of his rights thereunder, where he recorded the contract and took exclusive control of the premises thereunder.

3. The mortgagor, having himself acted under and received benefits from the contract, is estopped from denying its validity.

4. One applying for the appointment of a receiver has no right, on the hearing of the motion, to read affidavits in its support which have not been served on the opposite party.

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by Jennie Brundage and Byron Brundage against the Home Savings & Loan Association of Minneapolis, Minn., and the Northwestern & Pacific Hypotheek Bank, praying for the appointment of a receiver of certain mortgaged property, for its restitution, and damages for withholding it, and for any other just and proper relief. From an order appointing a receiver, the loan association appeals. Reversed.

Samuel R. Stern, for appellant.

ANDERS, J. The appellant is a corporation organized and existing under the laws of the

state of Minnesota, and was at all times hereinafter mentioned doing business in this state at the city of Spokane. The object for which the association was incorporated was, according to its charter, "to assist its members to buy real estate, and build, enlarge, or repair houses, paying for the same in weekly or monthly installments, and to accumulate funds from payments on stock subscribed by its members, and to loan such funds to its members on approved real-estate security or the paid-up stock of its members." It appears that, under its charter and the laws of Minnesota, it is empowered to loan its funds only to its members. It also appears that on or about July 28, 1892, the respondents made and signed an application for membership in this association, and subscribed for 160 shares of its "running" or installment stock, and agreed to abide by the terms and conditions of its charter and by-laws. The association thereupon issued and delivered its certificate for said shares of stock to the respondents, who thereby became members of said association. About the time respondents made their application for membership and subscribed for the stock above mentioned, they executed and delivered to the association a written application for a loan of $16,000, which they represented they desired for the purpose of paying off and discharging an incumbrance upon their property situated upon the northwest corner of Monroe street and College avenue, in the city of Spokane, and erecting thereon a one-story brick building, to cost $5,000. The association advanced the sum of $16,000 to the respondents, and also the further sum of $3,200, for the purpose aforesaid, to secure which sums the respondents, on August 19, 1892, executed and delivered to the appellant association two mortgages on the above-mentioned property,-one for $16,000, and the other for $3,200,-both of which were recorded on the following day, Instead of erecting the building mentioned' in their application for a loan to the appel-' lant, the respondents entered upon the construction of a building of an entirely dif ferent character, and of much greater cost, having two stories and a stone basement, not contemplated in the original plan for the building. When the building was partially erected, they found they had not sufficient funds to complete it; that it was open and exposed to the elements, and was being greatly damaged; and that liens to the extent of about $3,000 had been filed against the property. Being so circumstanced, the respondents urged the appellant to advance suflicient money to properly complete the building and offered to give additional security for the payment thereof. After some hesitation, the appellant agreed to advance the further sum of $7,500; and respondents, to secure this sum, executed a third mortgage, covering the property upon which the other two mortgages were given and other

property known as the "Brundage Block," on Post street, and also their homestead in Spokane. This mortgage, so far as the Brundage block was concerned, was subject to a first mortgage, held by the defendant bank, in the sum of $10,000. To further secure the sums advanced and owing, the respondents executed to appellant, simultaneously with this last-mentioned mortgage, an agreement reciting that it was executed to secure the payment of the mortgages above mentioned, and in order to secure this loan, and providing that the rents and income should be collected and received by the defendant association, and applied to the reduction and payment of the mortgages above mentioned, to the expense of caring for said property, and collecting and disbursing said rents, and paying light and water rates, and making repairs which the mortgagee might deem necessary to have made, to the payment of any other liens existing against the property which the appellant might deem advisable to have paid; and, until all such sums were paid, the appellant was to "take and hold the exclusive possession of all the property herein mentioned"; to rent any of said property, upon such terms and conditions as seemed best to appellant; to make leases for such times and upon such terms as appellant might deem best for its interests; to care for the said property in such manner as appellant might deem proper; to employ such agents as it deemed proper, who were to have full power and authority, under the direction of appellant and at the expense of respondents, to do any and all things in regard to the said property which the appellant might deem proper to do; to apply the moneys received as above stated; and to return to the plaintiffs any moneys remaining in its hands after the foregoing application had been made; and at least once in every six months to render a true and itemized statement of all moneys received and disbursed. This agreement was duly acknowledged and properly recorded in the auditor's office of Spokane county. Before the expiration of the six months within which the appellant was, under the provisions of the contract, to furuish an itemized statement, the respondents instituted this action praying for the appointment of a receiver, for the restitution and possession of the property, for $5,000 damages for the withholding thereof, for $2,750, value of rents and profits, and for such other and further relief as to the court might seem just and proper.

The complaint alleges, in substance, that on the 31st day of March, 1893, the respondents were the owners in fee and seised and possessed and entitled to the possession of the property described in the complaint; that, while so seised and possessed and entitled to the possession of said land and premises, the defendant did, on the day and year aforesaid, without right or title, enter into

and upon the same, and oust and eject plaintiffs therefrom, and ever since that day has willfully withheld and still withholds the possession thereof, to plaintiffs' damage in the sum of $5,000; that the value of the rents and profits of said land and premises from the 31st day of March, 1893, and while the plaintiffs have been excluded therefrom, is $2,750; that on the 31st day of March, 1893, a pretended agreement was prepared by defendant, whereby it was sought to have the plaintiffs deliver the possession of the property heretofore described to the defendant; that said defendant falsely and fraudulently represented to the plaintiffs that the said agreement for possession of the property was in part security for the payment of the said sum of $7,500, which the defendant agreed to loan to the plaintiffs for the purpose of completing the construction of a certain brick building in course of erection on part of the said described property, and that the agreement was never sent to the defendant and never signed by it, and that no part of the $7,500 was ever paid to the plaintiffs; that, upon procuring respondents' signatures to the said agreement in the manner aforesaid, the defendant caused the said pretended agreement to be recorded in the office of the auditor of Spokane county, without the signatures of any other or others of the parties to said pretended agreement, and that defendant thereupon forcibly, fraudulently and still falsely representing that said pretended agreement had been fully executed by it, took possession of the said described premises, and still forcibly and fraudulently withholds from the plaintiffs possession of the same; that, for a long time after the signing of said agreement by the plaintiffs, they knew nothing of the whereabouts of said agreement, nor of the fact that the same had not been signed by the defendant association, and never since they received knowledge of the nonexecution of the said agreement have the plaintiffs recognized said paper as an agreement, or consented to the possession so wrongfully and fraudulently obtained by the defendant, as aforesaid, of the said described property; that the defendant's management has been reckless and wasteful, and the building on that account has never been completed, to the irreparable injury of the plaintiffs; that because the income has been misappropriated, and the building not completed, no income has been derived therefrom, and the defendant association permitted and caused a foreclosure of the mortgage held by the defendant bank; that the local agent employed by the defendant association was incompetent and imprudent, and wrongfully applied the money paid by defendant to a contract fraudulently entered into with one Dyer for a building different from the one proposed to be erected by said plaintiffs; that the rents and profits received by said defendant were $300 per month; and that no accounting has

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