Opinion Per MITCHELL, J. [112 Wash. gage. Later the mortgagor executed an affidavit of good faith, caused the same to be attached to the mortgage, and it was thereafter duly recorded as a chattel mortgage. The court held the legal effect of what was done equal to a rewriting, resigning and reacknowledgment of the instrument. That is, by his act of attaching a new instrument to the old one and delivering it, he thereby impliedly made the instrument, in all of its parts, a new one as of that date. The present case is distinguishable, for here nothing new was attached to the instrument, nor was there any new delivery, and by a familiar rule of construction, Whittier, by his writing and conduct pursuant thereto, excluded the remaking or redating of the affidavit of good faith. Further, appellant relies upon the cases of Engleright v. Annesser, 19 Ohio C. C. 406, and Perry v. Ruttan, 10 U. C. Q. B. 637. Each of those cases considered a chattel mortgage statute that required the mortgagee to make the affidavit of good faith, and in each case the affidavit had been made prior to filing, but on a date different from that of the execution of the mortgage. In each case it was contended by the creditor that a proper construction of the statute required the mortgagee to make the affidavit at the time the mortgage was executed. In each case the statute, different from ours, contained no provision with reference to the time within which the instrument should be filed after it was executed, acknowledged and accompanied with the affidavit of good faith. In each case the decision was against the creditor. In the Ohio case, the court observed that the statute was silent as to when the affidavit should be made, while in the Upper Canada case, where the affidavit was made some days later than the mortgage and just before filing it, it was aptly said that such course was calculated to advance, July 1920] Opinion Per MITCHELL, J. rather than defeat, the object which the legislature had in view. If an affidavit of good faith by the mortgagor which antedates the filing by a period of time. in excess of that provided by the statute within which the instrument must be filed is to be held sufficient, then the object which the legislature had in view would be defeated rather than advanced. The subject is covered by the statute, the terms of which must control. Lastly, it is contended that, even if the mortgage was invalid, the taking of possession of the property by appellant before any rights of respondent creditors. accrued would cure such invalidity. We do not find that the appellant ever took possession of the property involved, nor does the finding of the trial court upon that subject so declare. Upon closing down the logging camp, appellant's drayman, for, and under the directions of, Mr. Whittier, took certain chattels from the camp to be stored, as directed by Mr. Whittier, in Seattle, looking to an adjustment of his affairs among all the creditors. On arriving in Seattle, the drayman, contrary to the instructions of Mr. Whittier, and surreptitiously, diverted the things to some place at or near Monroe, Washington, not under the care of appellant. The next day, upon learning of the location of the articles, Mr. Whittier, with respondent creditors, took possession of the articles, and at that time delivered to each of the respondent creditors those articles that were purchased from him and for which he had not been paid. Appellant's testimony shows it knew nothing of, and did not authorize, the removal of the goods from the logging camp. Under these circumstances, there was no possession by appellant, hence the rule relied on has no application here. Judgment affirmed. HOLCOMB, C. J., MAIN, TOLMAN, and PARKER, JJ., concur. Opinion Per MOUNT, J. [112 Wash. [No. 15727. Department Two. July 26, 1920.] JOHN H. WALLACE et al., Appellants, v. ELLEN WALLACE et al., Respondents.1 - LIEN FOR EJECTMENT (48, 50) - IMPROVEMENTS (4) -SET-OFF IMPROVEMENTS-ADVERSE CLAIM OF TITLE. Under Rem. Code, § 797, allowing the defendant in ejectment to recover the value of improvements placed upon property adversely held in good faith under claim of right, there can be no lien for improvements placed on property by permission of the owner for the benefit of defendant while occupying the premises by sufferance without any claim of right. Appeal by plaintiff from a judgment of the superior court for Yakima county, Holden, J., entered May 21, 1919, quieting plaintiff's title, but adjudging defendants a lien for the value of improvements placed upon the property, tried to the court. Reversed. W. A. Funk and Geo. H. Rummens, for appellants. O. L. Boose, for respondents. MOUNT, J.-This action was brought by the appellants to quiet title and recover possession of a certain tract of land in Yakima county. The complaint is in the usual form. The defendants answered, denying title and right of possession in the plaintiff, claiming an undivided one-half interest in themselves. On these issues the case was tried to the court without a jury, and resulted in findings to the effect that the plaintiff was the owner and entitled to the possession. Thereafter the defendants applied to the court for leave to reopen the case and introduce further evidence. This motion was granted and the court received further evidence relating to the value of improvements which had been placed upon the property, and finally entered Reported in 191 Pac. 793. July 19201 Opinion Per MOUNT, J. a decree adjudging that the plaintiff was the owner of the property and entitled to the possession thereof, but that the defendants were entitled to a lien upon the property for $1,500, the value of improvements placed thereon by the defendants. The plaintiff has appealed from that part of the decree which adjudged that the defendants were entitled to a lien of $1,500 on account of improvements placed upon the land. The facts in the case, as shown by the evidence, are substantially as follows: The plaintiff is the son of Ellen Wallace and John A. Wallace, now deceased. He is the brother of the other defendants. In the year 1903, the plaintiff John H. Wallace and one Richard Griffiths purchased the land in controversy. John H. Wallace at that time was a single man, living with his parents in the town of Cle Elum. He afterwards purchased the interest of Mr. Griffiths. John H. Wallace and his father were both working in the coal mines at that place. The father was injured and was unable to work. John H. Wallace then told his father and mother that they might move upon this tract of land and occupy it as a home until the family was grown up. His father and mother and family, in 1904, moved upon the property. This property at that time was in a raw state, except six acres which had been planted to alfalfa. There were no buildings of any consequence upon the land. When the family moved upon the land, they built a dwelling and some small buildings and afterwards improved all the land by putting it into cultivation. After they had lived there for a short time, John A. Wallace, the father of the appel lant, died. The family continued to reside upon the land and improved and cultivated it, without paying rent, until the year 1914. After that time, the appellant received one-half the crop as the rental value of Opinion Per MOUNT, J. [112 Wash. the property. In the year 1918, when all the children were of age except one, who was yet a minor, some disagreement arose between the appellant and his mother and brothers in regard to the manner in which the farm was cultivated. Thereupon the appellant leased the land to another party and the respondents refused to give possession to the other party and this action was brought, with the result as herein before stated. The single question in the case is, Are the respondents entitled to recover the value of the improvements placed upon the property during the time they were in possession? It is plain from the evidence that not until this action was brought did the respondents claim title thereto. Their sole defense to the complaint was that they were owners of an undivided one-half interest. When the court found that they were not owners, then they sought to subject the property to a lien for alleged improvements. The statute, at section 797, Rem. Code, provides that, in an action for the recovery of real property, upon which permanent improvements have been made by those holding in good faith under color or claim of title adversely to the plaintiff, the value of such improvements must be allowed as a counterclaim to the defendants. While it was claimed upon the original trial that the respondents owned an undivided one-half interest, it is plain from the evidence that such claim was not made in good faith under color or claim of title adversely to appellant. They knew, from the time they went into possession of the property until this action was brought, that they were there by the kindness of the appellant. They knew the condition of the property at the time they went upon it. They knew it would require improvements to be made before the property could produce a |