(7 Wash. 62)

OSBURN et al. v. DOLAN. (Supreme Court of Washington. July 25, 1893.)

PAROL EVIDENCE-VARYING WRITTEN CONTRACT

-NOVATION-EVIDENCE.

1. Where a written assignment of the contract rights of a purchaser of real estate contains no provision by which the assignee assumes liability for the part of the price still unpaid, parol evidence of such assumption is inadmissible.

2. A purchaser of land assigned the contract of sale, on which some payments remained due, to a third person, whom he then introduced to his vendor as the man to whom he had resold the land. Such assignee then told the vendor to look to him for the rest of the payments, to which the vendor replied that it made no difference to him; that he would make the deed to whoever made the last payment. Held, that there was no novation by which the assignee of the contract became bound for the purchase money yet to be paid.

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

Action by A. E. Osburn and others against James Dolan on an alleged indebtedness of said defendant to one Van Vaikenburg, assigned to plaintiffs. From a judgment for plaintiffs, defendant appeals. Reversed.

James Kiefer, for appellant. Ellsworth & McGrew, for respondents.

STILES, J. In this case, the first cause of action having been dismissed by the court below, it is not necessary that we pass upon the alleged errors which were argued by the appellant in connection with the court's treatment of it before the dismissal. The second cause of action alone was tried, and it is upon that the judgment was entered. The question which goes to the merits of this matter is whether the appellant in any way bound himself so that Van Valkenburg could have maintained an action against him. Van Valkenburg, owning certain real estate, made a contract in writing with the respondents for the sale of it. Six hundred and twenty-five dollars was the contract price, of which respondents paid $125 cash, and agreed to pay the balance in two equal portions, on time. This contract was executed as a deed, and ran to respondents or their assigns. Subsequently respondents sold the contract to the appellant, and assigned it to him in writing, in the following words: "For and in consideration of one hundred and twenty-five dollars paid by James Dolan, of King Co., state of Washington, to the within-named second parties, the said withinnamed second parties hereby transfer, set over, and assign all their interest in the within contract, and in and to the withindescribed tract of land, to the said James Dolan." Clearly, the contract of assignment thus made contained no undertaking on the part of Dolan to pay the balance of purchase money, viz. $500. and it was improper to receive any evidence tending to v.34P.no.4-28

show that any stipulations had been made between the parties in addition to those expressed in the writing. If there were such stipulations, and they were by inadvertence or mistake left out of the contract, there were other means at the command of the respondents by which the contract could have been reformed so as to express the actual agreement of the parties. In this condition of the matter, Van Valkenburg gave a written order to the respondents upon Dolan for $250, which the court finds Dolan orally promised to pay when it was presented to him. Such promise, however, was without any consideration; and, unless the respondents' contention that what occurred between themselves, Van Valkenburg, and Dolan at the time of the assignment of the land contract amounted to a novation, Dolan was not bound. The transaction referred to was this: The three parties were together, and the testimony shows that one of the respondents introduced Dolan to Van Valkenburg, and told him that Dolan was the man he had sold the tract to; whereupon Dolan said, "After this you can look to me for the rest of your payments on this land," and Van Valkenburg replied, "It makes no difference to me. I will make the deed to whoever pays the money. Whoever makes the last payment will get the deed." To accomplish a novation in this case, it must have appeared that Van Valkenburg had in some way bound himself to accept the personal liability of Dolan for the personal liability of the respondents, and to discharge the respondents of their obligation to him, and this could not be proven by the loose and uncertain talk which occurred between these parties. Estate of Sullenberger, 72 Cal. 549, 14 Pac. Rep. 513. What did occur would appear to show that Van Valkenburg was not relying upon the personal obligation of the respondents to any great degree, but rather that he was holding the land as the principal source for his indemnification. This is especially so inasmuch as the contract provided for a forfeiture of the money already paid in case the other payments were not made at the times specified. Judgment reversed, and cause remanded for a new trial.

office for cancellation, he cannot claim an allowance for such improvements on final decision against him.

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

Ejectment by Louis M. Smith, by Knut O. Smith, his guardian, against John Arthur. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson, Edsen & Humphries, for appellant.

Appellant is entitled to an allowance for the improvements made by him. Hatcher v. Briggs, 6 Or. 31-50; Elliott v. Armstrong, 4 Blackf. 421; Adkins v. Hudson, 19 Ind. 392; Troost v. Davis, 31 Ind. 34; Hicklin v. Marco, 46 Fed. Rep. 424; Blodgett v. Hitt, 29 Wis. 169, 187; Harper's Appeal, 64 Pa. St. 316, 323; Miner v. Beekman, 50 N. Y. 338, 345; Ford v. Knapp, 6 N. E. Rep. 283, 102 N. Y. 135, 140, 141; Thomas v. Evans, 12 N. E. Rep. 571, 105 N. Y. 601; Pugh v, Bell, 2 T. B. Mon. 125; Boatner v. Ventress, 8 Mart. (N. S.) 644; Bright v. Boyd, 1 Story, 478, 2 Story, 607; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Carver v. Coffman, 10 N. E. Rep. 567, 109 Ind. 547; Mahoney v. Mahoney, 65 Ill. 406; 3 Pom. Eq. Jur. § 1241; Barrett v. Stradl, 41 N. W. Rep. 439, 442, 73 Wis. 385.

Jenner, Legg & Williams, for respondent.

DUNBAR, C. J. We have carefully examined the record in this case as well as the brief of the appellant, and find that all of the pertinent questions raised have been decided by this court either in Keane v. Brygger, 3 Wash. St. 338, 28 Pac. Rep. 653, or Brygger v. Schweitzer, 5 Wash. 564, 32 Pac. Rep. 462, 33 Pac. Rep. 388, and most of them in both of the above-named cases; so that we do not feel it incumbent upon us to again enter into a discussion of their merits. So far as the question of improvements made on the land by appellant is concerned, we are of the opinion that he has no remedy, and that the case does not fall within the rule announced by the cases cited in appellant's brief. The answer alleges that appellant made his homestead filing in October, 1888. Thirteen days after the filing he was notified by the officers of the land office that the entry had been allowed by inadvertence, and would be returned to the general land office for cancellation. Up to this time no improvements had been made, and none were commenced until March, 1889, when he took possession under claim of his homestead filing. The general land office decided adversely to his interests on January 28, 1889, and although he alleges that he was not notified of this decision until April 6, 1889, he was during the pendency of the appeal placing improvements on the land at his peril, especially as the land department had, so far as he

had knowledge, decided against him. And, besides, it is not likely that any great amount of improvements had been made between some time in March (what time the answer does not aver) and the 6th of April following. While it is no doubt true, as suggested in appellant's brief, that the land department and the courts have uniformly regarded the making of improvements as the highest proof of good faith, yet such improvements must be made before contest is inaugurated. Suits in the land department, as well as in the courts, are determined upon the facts existing, and the rights attaching under those facts, at the time of the commencement of the action, and such rights cannot be affected by any subsequent actions of the litigants. The judgment must be affirmed.

SCOTT, J., (dissenting.) I am unable to concur in the opinion rendered in this case, logical as it reads. It must be borne in mind that we have a system of property rights peculiar to ourselves, and for that reason some of the rules generally applicable to suits on negotiable paper, well settled elsewhere, cannot be applied here with safety. Our laws recognize authority in the husband to create debts on the part of the community. The wife may also create debts for which the community estate is liable, at least for some purposes, although she may not have such power generally. The husband can contract with reference 10 his separate property, and create debts in its acquisition, management, and disposition, which may probably be a charge upon the community personal property, because of his power to dispose of the same, but could not be made a charge upon any part of the community real estate prior to a dissolution of the community, except by the act of both of its members, unless for improvements thereon, under the provision in section 1400, vol. 1, of the Code; and, it may be, with the possible further exception of such real estate as he holds the record title to by force of the act of the legislature approved March 9, 1891, (Sess. Laws 1891, p. 368,) where the wife has not given the notice pre

scribed by the act. The wife may also contract and create debts with reference to her separate property which could not be made a charge upon any part of the community property prior to dissolution of the community, unless in such cases as would come under the act last mentioned. Such being the law, it may be of vital interest to a creditor to know whether or not an obligation which he holds contracted by one of the parties is a separate debt or a community debt, and its community character can only be established in an action to which both members of the community are parties. No one will contend that the wife can be concluded upon this question, it seems to me, without an opportunity to be heard, as such a rule would be destructive of the entire community system. This question was brought to the attention of the territorial supreme court in Andrews v. Andrews, 3 Wash. T. 286, 14 Pac. Rep. 68, and, while not decided, it was said there that "we see no way for a creditor to get a judgment lien conclusively operative upon such real estate, except as the result of an act.on or proceeding to which both husband and wife were parties, and in which the community character of the debt is admitted or in issue. It may be that he could come into court, in the first instance, alleging the community character of the debt, and obtain a judgment as for a community debt." Such an action upon an obligation executed by one of the parties only would be something of an anomaly, but the wife is in a sense a party to every community debt, even though in the shape of a note given by the husband, and the right to sue both members of the community thereon is rendered necessary by the situation. If this cannot be done, when can or should the character of such a debt be determined so as to be binding upon all the parties interested? It may be said that upon the issuance of an execution upon a judgment obtained against the husband, and a levy upon community real estate thereunder, the wife can come in and resist a sale of the property, or show that the judgment was not obtained upon a community debt. But there are serious objections against limiting the method to such a proceeding. The wife, through absence or otherwise, might have no knowledge of the levy, and in such a case must the execution creditor go ahead at his peril, and must the purchaser under such an execution sale take the chances of having to defend an action which the wife may thereafter bring, and of losing the property if the debt upon which the judgment was obtained is shown not to have been a community debt? If so, it is evident that real estate, under such circumstances, would bring but a very small proportion of its value. Or will it be contended that upon the issuance of an execution, and its levy upon community real estate, the creditor

should bring a suit or proceeding, in aid of the execution against the community, to establish the community character of the debt? If so, he might as well bring the action originally against the community, and save the delay and expense of a second suit. Any objection that can be raised to joining the wife in the suit in the first instance in an action upon a note given by the husband for a community debt would apply with equal force to a subsequent proceeding against the wife to determine the community character of that same debt in the form of a judgment against the husband. Our laws relating to proceedings against husband and wife for the collection of debts and the enforcement of obligations are yet very much unsettled. The subject is a complicated one, with innumerable intricate bearings, and a solution thereof compatible with the business interests of the country, and at the same time affording protection to the husband and wife community, is of the greatest importance. It seems to me the decision rendered in this case strikes hard at the foundation of the commercial interests of the people.

There are many questions affecting community rights and obligations which will likely be presented for determination, some of which are at least indirectly involved in this action. Can a creditor, in enforcing the collection of a community debt, proceed against the property of the community or the separate property of either of its members indiscriminately? In Improvement Co. v. Sagmeister, 4 Wash. 710, 30 Pac. Rep. 1058, we held that debts contracted by the husband are prima facie community debts. But this presumption upon a negotiable note should. not be allowed to grow into a conclusive one as against the wife, in whosesoever hands it may be, although, if in the hands of a holder in good faith without notice, the wife would probably be concluded as to all defenses going to a misrepresentation of the consideration therefor by the party originally obtaining the note, as this should follow from the fact that the husband had the right to create the debt against the community for community purposes. But the wife must certainly have the right to be heard upon the proposition as to its being a community debt in fact. The rule that the consideration for a negotiable note cannot be inquired into as against a subsequent holder in good faith should only conclusively operate as against the individual executing the note. But the creditor should be permitted to show that it is a community debt, and, when that fact is established, the rule should operate against the community as to any further questions going to the consideration, for it can then be said that the community executed it. It will not do to hold that the presumption that a negotiable note executed by the husband creates a debt against the community is an absolute one, as it would vest power in the

husband to indirectly dispose of the entire community estate, both real and personal. One of the main purposes of the law is to prevent this. In holding that the consideration cannot be inquired into in favor of the maker against a subsequent holder in good faith, the creditor is given all the protection that the common law gave him. The rule was invoked for his benefit, and to further commercial interests, and would not militate against a rule permitting him to establish the fact that there was another party liable upon that same note not patent upon its face. This would be extending the doctrine, instead of limiting it. The decision of all such questions affecting the community must be approached with great care, having regard for the welfare of the community, and for the commercial interests of the people; and each question, as it arises, must necessarily be considered with reference to its bearing upon others, or interminable confusion and. hardship will result. With great deference to the straightforward, apparently simple holding in this case, it seems to me it involves much more than is at first sight visible. I think the plaintiff in this case should have the right to have, the character of its claim settled in this action, and to have a judgment against all the parties liable thereon. If it is to be held that in this state a note executed by the husband is conclusively his separate debt only, most disastrous consequences will flow from it, as the great bulk of the property held in the state is undoubtedly community property, and in many cases, as in this one, the creditor would not be in a position to sue upon the original debt. The commercial value of negotiable paper would be most seriously impaired thereby. On the other hand, if such a note is to be held conclusively a community debt, then there is an end to the supposed protection afforded the wife by the community laws, and a long stride backward has been taken in the relations of husband and wife.

HOYT, J., concurs.

(100 Cal. 7)

STOWELL v. WADDINGHAM et al. (No. 19,166.)

(Supreme Court of California. Oct. 10, 1893.) INJUNCTION-MORTGAGES-WASTE-HIGHWAYS.

1. The owner of houses, after they have been removed from his land onto a public street, cannot maintain a suit to enjoin their removal, as he has an adequate remedy at law.

2. Where houses on mortgaged land have been removed therefrom, they are personalty, however they may have been removed, and are no longer under the operation of the mortgage lien, and the mortgagee cannot therefore maintain a suit to enjoin their further removal.

3. The fact that they have been removed into a public street on which the land abuts, and not beyond the center line thereof, does not render their location still on the land, on the ground that the owner of land abutting on a street owns the land over which the street runs to the center line thereof, as he has no

right to place his buildings in the street, and has no right as owner in anything in transit over the street.

Commissioners' decision. Department 2. Appeal from superior court, San Bernardino county; John L. Campbell, Judge.

Action by N. W. Stowell against W. J. Waddingham and others for an injunction. An injunction was granted, and defendants appeal. Reversed.

Harris & Gregg, for appellants. William Gird, for respondent.

TEMPLE, C. This case resembles Miller v. Waddingham, 91 Cal. 377, 27 Pac. Rep. 750. In fact, the building contract is the same in both cases. Clubine contracted with the defendant Newman to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time. Clubine had a contract with plaintiff to purchase from plaintiff about 20 acres of land in the town of Ontario. He was not given possession under the contract, except that he was authorized to divide the land into blocks and lots. He might sell lots at not less than a fixed price, and plaintiff would make the deeds and receive the purchase money. The contract price for the land was $18,500, and the plaintiff testified that he had received of this about $5,000. Clubine failed to make the payments agreed upon, and asked for ån extension of time, and promised to have some buildings erected upon the land, and thereupon the time was extended. The contract price for the buildings to be erected by Newman upon the land purchased from Stowell was $4,100, payable in weekly installments. Newman furnished all materials, and did all After the houses had all been the work. commenced, and were from one-eighth to one-fourth completed, Clubine failed to make payments, and informed Newman that he could make no more. Seven hundred dollars only had been paid. It was then agreed between Clubine and Newman that Newman should finish the buildings, and that he should own them unless they were paid for. Under this arrangement the houses were all completed by Newman. Plaintiff testified that he knew nothing of this arrangement between Newman and Clubine; that he did not object to the construction of the houses, but was anxious to have them built. It does not appear that Newman was aware of the understanding between Clubine and the plaintiff. The houses rested upon mudsills placed upon the surface of the ground, and plaintiff testified that upon their removal the land was left substantially as it was before their erection. Newman, after the completion of his contract, filed a claim for a mechanic's and material man's lien upon the houses, but afterwards, as they were not paid for, sold them to the defendant Waddingham, who commenced their removal on Saturday night,

and worked with a body of men all night and all day Sunday. Plaintiff appeared upon the ground while the work of removal was going on, and forbade it, and on the following Monday commenced this action enjoining the work. At that time all the houses had been removed from the premises into the streets, where they still are, except one, which was taken away. The finding upon the subject is as follows: "(12) That all of said houses in said paragraph mentioned and described were at the time this action was brought, and still are, in the public streets and highways of Ontario, in said county of San Bernardino, resting upon blocking, rollers, and moving appliances, which were placed under said buildings by said Waddingham for the purpose of removing said lumber, but upon land the title to which is in N. W. Stowell. Said houses were all so removed into said streets and highways by defendant Waddingham, but not beyond the center lines of any of said highways bordering said premises de scribed in plaintiff's amended complaint."

The complaint avers, and it is found, that, deprived of the buildings, the land constitutes insufficient security for the money still due plaintiff upon his contract for the sale of the land. If it be admitted that, under the circumstances, plaintiff was the legal owner of the houses, he had an adequate remedy at law; but, whether owner or mortgagee. this action to stay waste cannot be maintained. It was commenced too late; the waste had already been committed. He had no right to stop the buildings in the public highway. Buckout v. Swift, 27 Cal. 433. In that case the plaintiff was mortgagee, and the house was a part of the land when the mortgage was executed. The premises were in Sacramento, and the house was moved by the great flood of 1862 into the street, a short distance from the lot. There it was purchased by Lowell with a full notice of plaintiff's mortgage. The court said: "So far as legal effect is concerned, it matters not whether the severance is by act of God or the act of man. The severance proprio vigore changed the character of the property from real to personal, irrespective of the means by which it was accomplished." It was also said that, by the removal of the house from the premises, "the house was effectually removed from the operation of the mortgage lien." Plaintiff's counsel claims that Stowell's position is that of a mortgagee. In such case his lien was effectually destroyed by the removal of the houses. But, whether he was owner or mortgagee, this suit cannot be maintained.

Respondent's counsel does not appear to dispute this general proposition, but he contends that, inasmuch as plaintiff is the owner of the land over which the street runs to the center line of it, as to that boundary the mortgaged premises extend,-the houses, though severed from the land, are still on

Con

the premises, and subject to his lien. ceding, for the purposes of the case, that a suit could be maintained although the fix, tures had been severed from the land, put upon rollers and wheels, and were being moved off from the premises, but were not yet entirely off, such a case is not made by the facts. The owner of land, over which a public highway has been established, has no right to place his buildings there in such a way as to obstruct the highway, nor has he any right, as such owner, in anything in transit over the highway. He cannot interfere with persons using the street simply because he owns the land subject to the public easement. Property being carried over the street is no more on his premises there than it would be miles away. I think the order appealed from should be reversed, and the cause remanded.

We concur: BELCHER, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is reversed, and the cause remanded.

(4 Cal. Unrep. 222) SECURITY SAV. BANK & TRUST CO. v. BOARD OF SUP'RS OF LOS ANGELES COUNTY et al. (No. 14.885.) MAIN STREET SAV. BANK & TRUST CO. v. SAME. (No. 14,886.) LOS ANGELES SAV. BANK v. SAME. (No. 14,887.) (Supreme Court of California. Aug. 31, 1893.) TAXATION-EQUALIZATION-NOTICE-WRIT OF RE

VIEW.

1. An order of the board of equalization finding that a bank has omitted property from the list of its taxable property, and should be assessed thereon, and directing the assessor to add such property to its assessment, is not an attempt by the board to add property to the list, and exercise assessorial powers, but is a direction that the assessor make such addition, though the order specifies the value of the property to be added, and is authorized by Pol. Code, 3681, requiring the assessor, at the request of the board, to list and assess property. which he has failed to assess.

2. Pol. Code, § 3681, under which the assessor is required, at the request of the board of equalization, to list and assess property which he has failed to assess, which section the city charter of Los Angeles makes applicable to the common council, sitting as a board of equalization, does not conflict with the constitutional provisions which define the powers and duties of state and county boards of equalization, and which do not give the power to cause property to be added to the assessment list, since it merely extends the power and duty of the assessor.

3. A notice to a bank to appear before the board of equalization, and show cause why its "assessment on solvent credits should not be increased from $2,774 to $275,000," sufficiently informs it that it is proposed to add property to the assessment.

4. A person appearing before the board of equalization in response to a notice, and submitting to the action of the board, waives any defect in the notice.

5. A finding by the board of equalization that a person has omitted taxable property from his list to a certain amount is conclusive