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ties would be denied the benefit of the statutes relating to amendments.

[Ed. Note.--For cases in point, see Cent. Dig, vol. 2, Appeal and Error, $$ 1056, 1057.] Root, J., dissenting.

Appeal from Superior Court, Thurston County ; R. B. Albertson, Judge.

Action by Mrs. Clara E. Sylvester and another against the state of Washington (substituted as defendant for A. B. Allison and wife, defendants) to recover a tract of land. From a judgment for defendant, plaintiffs appeal. Affirmed.

Geo. Marvin Savage and May L. Sylvester, for appellants. John D. Atkinson, Atty. Gen., and A. J. Falknor, Asst. Atty. Gen., for the State.

where a certified copy of this notification which bore on its face evidences of its genuineness showed when it was given and that the land had been surveyed prior to that time was introduced in evidence, it was proper to find that the notification was given on the date stated in the certified copy thereof. 2. TERRITORIES – CONSTRUCTION AND OPERA


Act March 2, 1853, c. 90, 10 Stat. 172, creating the territory of Washington, described its boundaries, provided for a complete scheme of internal government and a legislative assembly with power to locate and establish the seat of government of the territory, and appropriated $5,000 to be applied by the Governor to the erection of suitable buildings at the seat of government. Held, that the territory had the power under the act to acquire and hold land required for the erection of government buildings at the seat of government, though Congress at a subsequent session made another appropriation for the erection of a temporary capitol and for a penitentiary, inclusive of the sites of the buildings. 3. DEEDS-OPERATIVE WORDS OF CONVEYANCE -ESTATES AND INTERESTS CREATED.

A deed granting land to the territory of Washington did not require the words of succession in order to pass a fee, since the deed while in form to the territory was in fact to the government, which has had an uninterrupted existence, though its form changed in the change from a territory to a state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, 88 2032-2034.] 4. PUBLIC LANDS - TRANSFER BY HOLDER VALIDITY OF CONTRACT_STATUTES.

Act July 17, 1854, c. 84, § 2. 10 Stat. 305, repealed the proviso of Oregon Donation Act Sept. 27, 1850, c. 76, § 4, 9 Stat. 497. providing that all contracts for the sale of lands claimed under that law before the issue of patents therefor are void, and provided that no sale of such land is valid, unless the vendor has resided four years upon the land. Held, that a deed to land claimed under the former statute executed after the grantor had completed a four years' residence thereon was valid. 5. DEEDS-PAROL EVIDENCE — ADMISSIBILITY -CONDITIONS.

Under the rule that a parol contemporaneous agreement cannot be shown to vary the terms of a written instrument, parol evidence was inadmissible to show that a deed of land to a territory was executed upon the condition that the territory would erect and maintain a capitol building on the land conveyed. 6. ESTOPPEL – BY DEED — GROUNDS – COVENANTS.

Where the state holding land under a valid deed from S. secured a deed to the same land from the heirs of S., which provided that, unless the land remain the site for the capitol of the state, the deed became void, it was not estopped from asserting that it holds the land under a different tenure than that expressed in the second deed.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, $ 69.] 7. DEEDS – CONTENTS OF INSTRUMENT - DESCRIPTION OF PROPERTY-CERTAINTY.

The description in a deed, which, though imperfect, was sufficient to accurately locate the land conveyed, was sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, $ 65.] 8. APPEAL REVIEW - SCOPE AND EXTENTTHEORY AND GROUNDS—THEORY OF CASE.

Where a case was tried as if upon sufficient pleadings, it must be considered upon the same theory on appeal, since otherwise the par

FULLERTON, J. The appellants brought this action against the state of Washington to recover a tract of land, containing some 10 acres, held by the state as a part of its capitol grounds. The appellant Clara E. Sylvester is the wife, and the appellant May L. Sylvester is the daughter, of Edmund Syl. vester, deceased, and together they constitute his sole heirs at law. The land in question is a part of a larger tract patented by the government of the United States to Edmund Sylvester. The appellants claim the land as his heirs at law, contending that the muniments of title through which the state holds the property are either void and of no effect, or are subject to conditions which have been forfeited by the state.

Edmund Sylvester acquired title to the land under the act of Congress of September 27, 1850, commonly known as the "Oregon Donation Act," 9 Stat. 496, c. 76. The record shows that he made settlement upon it in 1850, filed his notification of such settlement with the Surveyor General of Oregon in February, 1854, made final proof of his settlement and continuous residence in July, 1858, and received patent for the land in May, 1860. On March 2, 18.33, Congress passed an act creating the territory of Washington. The act specifically described the boundaries of the new territory, and provided for it a complete scheme of internal government. As a part of the governing body it created a legislative assembly, and gave it power at its first session, or as soon thereafter as it should deem expedient, “to locate and establish the seat of government for said territory, at such place as [it might] deem eligible; which place, however, shall thereafter be subject to be changed by said legislative assembly"; and the sum of $5,000 was appropriated out of the general treasury "and granted to said territory of Washington to be there applied by the Governor to the erection of suitable buildings at the seat of government.” 10 Stat. 172, c. 90 et seq. The legislative assembly exercised the power thus granted at its second session. On January 9, 1835, it passed the following act (Laws 1854–55, p. 5):

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“Section 1. Be it enacted by the legislative assembly of the territory of Washington, that the seat of government of this territory be, and hereby is established and located on a certain piece or parcel of land on the land claim of Edmund Sylvester, in the county of Thurston, in section twenty-three, township eighteen north, range two west, containing ten acres, and more particularly described as follows: Commencing at a point south twenty-four degrees, twenty-three minutes west, nineteen, and two one-hundredths chains from the northwest corner of Main and Union Streets, in the town of Olympia ; thence south seven and fifty one-hundredths chains; thence west eight and fifty-eight hundredths chains; thence north, forty-seven degrees west, one and seventy-three hundredths chains; thence north, forty-eight degrees thirty minutes west, one and sixty hundredths chains; thence north, sixty-five degrees west, one and ninety-three hundredths chains; thence north, thirty-three degrees thirty minutes west, two and eighty hundredths chains; thence north, thirty-eight degrees west, one and seventeen hundredths chains; thence north, forty-five degrees west, one and eighty-seven hundredths chains; thence east sixteen and four hundredths chains, to place of beginning.

“Sec. 2. This act to take effect and be in force fifteen days after its passage: Provided, that within that time the present owners or claimants give a deed of release for the above described ten acres of land to the territory of Washington without expense to said territory, which shall be deemed satisfactory by a joint committee to be appointed by both branches of the legislative assembly to examine and receive the saine.

"Passed January 9, 1855.”

On January 18, 1855, nine days later, Edmund Sylvester and his wife, Clara E., conveyed to the territory of Washington the lands in the act described; and on January 29, 1855, the territory by a special act accepted the deed, authorized it to be deposited in the office of the Secretary of the territory, and directed that the Governor take possession of the tract described, and "hold possession thereof, for the use and behalf of the territory of Washington, in accordance with the first section of the act and to which this is a supplement." Possession of the tract was thereupon taken, which possession has been maintained by the territory and its successor, the state of Washington, from thence until the present time. The deed from Edmund Sylvester and wife to the territory was in form a deed of bargain and sale, the granting words being, "do grant, bargain, sell, convey and confirm unto the said" territory, etc. The habendum clause was as follows: "To have and to hold the same to the said party of the second part forever, free from any claim of the said party of first part, their heirs or assigns, or any or all persons claiming by, through, from, or

91 P.-2

under them or any of them." It was executed, as will be observed from the dates given, more than four years after Sylvester had made settlement upon the land, and more than a year after he had given notice to the Surveyor General of Oregon of his intent to claim the same under the Oregon donation act, but was executed prior to the time be had made final proof of his settlement and cultivation, and prior to the time patent was issued to him therefor by the United States. After the admission of the territory of Washington into the Union as a state, the Legislature passed an act for the location of a capitol building on the land in question. At that time the then Attorney General examined into the title of the state to the land, and advised that a deed be procured from the heirs of Edmund Sylvester in order to perfect the state's legal title. Pursuant to this opinion, after request made of them, the present appellants executed to the state a quitclaim deed to the land, reciting, however, that the deed was made and accepted on the express condition that the tract should be and remain the site for the capitol of the state of Washington, and that in the event of a breach of the foregoing condition, or in the event of the location of the capitol elsewhere than upon such tract, the deed should become null and void. The state, however, did not erect a capitol building upon this site. After spending some sixty-odd thousands of dollars in the erection of a foundation for such a building, it abandoned the project, and erected a capitol building in another part of the city of Olympia, wherein all the state officers are now situate. But the state still maintains possession of the 10-acre tract, making biennial appropriations through the Legislature for its care and preservation.

The foregoing facts are in the main undisputed. The appellants, however, make some question as to the time the notification to the Surveyor General by Edmund Sylvester of his intent to claim the land was filed. They show that a survey of the land claim was made as late as April 22, 1857, and argue that, inasmuch as the notification could not have been given until after the survey, it must have been given at a date later than the date found by the court. This contention is further supported by certificates from the Surveyor General of Oregon and the register of the land office at Oregon City, Or., to the effect that neither office contains any record of the filing of such a notification. But the state produced a certified copy of the notification from the General Land Office at Washington. This paper bears on its face evidence of its genuineness, and shows con clusively that it was given at the date first above stated. It shows, moreover, that the claim had actually been surveyed prior to that time, as it contains a description of it by metes and bounds corresponding in detail to the description given of the claim in

the patent. The fact that this paper was not quire the same property by a lease for a found in the offices where it would be ex- definite or indefinite time. The fact that pected to be found does not detract from its the Congress at a subsequent session made character as evidence. The explanation is another appropriation for the erection of a perhaps to be found in the fact that the “temporary capitol, and for a penitentiary, territory of Washington was cut off from the inclusive of the sites of the buildings," does Oregon Territory between the time of the not require the holding that no authority to giving of the notification and the issuance of acquire title to land was included in the prethe patent, and the confusion arose in mak- vious grant of power. The latter act is in ing the necessary transcription from the rec- no way connected with the earlier one, and ords incident to the creation of a new ter- certainly does not preclude us from applying ritory out of an old one. But be this as it may, to the earlier one the ordinary rules of conthere was no law requiring that this record struction. be kept in the Oregon land offices, and the The second contention is that the deed, (eneral Land Office at Washington, for its since it did not run to the successors or heirs better preservation, might well take posses- of the territory, conveyed to it an estate tersion of it and maintain it as a part of its minable at the end of its existence, and that own files. We conclude therefore that the in consequence the property reverted to the facts are correctly found. The question re- heirs at law of Edmund Sylvester when the maining is, did the court err in its conclusion territory was merged into the state. But the of law to the effect that the state had title common-law rule that the word "heirs," or in fee to the land in suit? In discussing this its equivalent, was necessary in a deed in question, we will notice the several conten- order to convey a fee, had no application tions of the appellants in the order in which when the grant was to the crown. While they present them.

the individual representing the sovereignty The first is that the original deed from might change, the sovereign itself was imEdmund Sylvester and wife to the territory mortal by perpetual succession; and, on prinof Washington was void for want of a gran- ciple, a life estate to an ideal being having tee empowered to take title. The argument a perpetual and uninterrupted existence must is that the territory, not being sovereign, had be coextensive with a fee or perpetuity, and no inherent power to take title to land, and hence words of succession cannot extend it. that such a power was not conferred upon it For similar reasons the same result followed by Congress in the act creating the territory. deeds at common law to corporations agBut without inquiring into the sovereign ca- gregate. Jones on Real Property, $ 598; Wilpacity of the territory to take and hold real cox v. Wheeler, 47 X. II. 488; Asheville Diviproperty, and conceding that no express au- sion No. 15 v. Aston, 92 N. C. 578. thority was conferred on the territory by the similar principles a deed to the territory did organic act, we still think that it had power not require the words of succession in order to acquire and hold land for the purposes of to pass a fee. The deed while in form to a capitol site. From the quotations hereto- the territory was in fact to the government: fore made from the organic act, it will be and, while the form of government changed observed that the Congress especially em- in the change from a territory to statehood, powered the legislative assembly of the ter- there was no lapse in the government itself. ritory to locate and establish the seat of The government has had an uninterrupted government for the territory, and mad existence. appropriation for the erection of suitable The third contention is that the deed is buildings on the site so selected. The power voidl because prohibited by the donation act to locate and establish the seat of govern- itself. As originally enacted, the proviso to ment and erect suitable buildings thereon the fourth section of the act did provide that must have necessarily included the power to all contracts by any person for the sale of acquire and hold such a quantity of land as the land which such person might be enwas required for that purpose. To hold titled to under the act before he receivel otherwise would be to deny the territory patent should be void (9 Stat. 197, c. 76, § 1); power to carry out tie powers expressly con- but by the amendatory act of July 17, 1834 ferred, as it is manifest that it could not es- (10 Stat. 305, c. 84, § 2), it was further entablish a seat of government and erect suita- acteil "that the proviso to the fourth section ble buildings for its purposes without ac- of the act of twenty-seventh September, quiring a site upon which to establish the eighteen hundred and fifty, above mentioned. seat of government or erect the buildings. by which all contracts for the sale of lands The appellants suggest that the legislative claimed under that law, before the issue of assembly might have acquired by lea se suffi- patents therefor, are declared void, shall be. cient land for its purposes. But this, in- and the same is hereby, repealed: Provided, stead of being an argument against the exist- that no sale shall be deemed valid, unless the ence of the power to acquire title to the land, vendor shall have resided four years upon is a concession in its favor, as it would re- the land." This act has been held by this quire no greater act of sovereignty for the court, as well as by the Supreme Court of territory to acquire property for capitol pur- the United States, to permit a donation la nit poses by a deed in fee than it would to ac- claimant after four years' residence and culti

vation to sell and convey his claim, whether he had received patent therefor or not. Roeder v. Fouts, 5 Wash. 135, 31 Pac. 432; Brazee v. Schofield, 2 Wash. T. 209, 3 Pac. 265; Brazee v. Schofield, 124 U. S. 495, 8 Sup. Ct. 604, 31 L. Ed. 484; Barney v. Dolph, 97 L'. S. 652, 24 I. Ed. 1063.

The deed in question here was executed after Edmund Sylvester had completed a our years' residence upon the claim. As shown by his own affidavits and the affidavits of his witness on which patent was issued, he commenced bis residence on the land some time in 1850, and resided upon it continuously until he made the deed to the territory on January 18, 1855, a period of over four years. His deed, therefore, was not void for want of tit'e in himself, nor did it violate any rule of public policy. The appellant cites Vance v. Burbank, 101 U. S. 514, 23 L. Ed. 929, as overruling the earlier case of Barney v. Dolph, supra, but a more careful examination of the case will show that this is not so. The earlier Oregon cases, and some cases in the inferior federal courts, had laid down the rule that the donation act was a grant in præsenti, the donor taking a present ti le subject to be defeated by conditions subsequent, and Barney v. Dolphi was thought to affirm that principle. The case cited merely holds that this was not a correct construction of the act, and that it was not intended in Barney v. Dolph to so hold. It held that the grant did not take effect until the settler bad resided upon and cultivated the tract for four consecutive years, and otherwise conformed to the provisions of the act, but did not depart from the rule that the settler had power to convey the fee after having resided upon the land and cultivated the same for four consecutive years.

The fourth contention is that the trial court erred in excluding parol evidence tending to show that the first deed was executed upon the condition that the territory would erect and maintain a capitol building upon the land conveyed. But manifestly there was no error in this. No rule of law is more uniformly applied than is the rule that a parol contemporaneous agreement cannot be shown to vary the terms of a written instrument. This rule is applicable here, as a deed is such an agreement as falls within the rule. Devlin on Deeds (2d Ed.) $ 850a.

The fifth contention is that the second deed, the deed made by the present appellants to the state, governs and determines the status of the parties and the tenure by which the state holds the land in question. Much of the argument under this branch of the case is based on the assumption that the first deed was invalid and insufficient to convey the title of the property to the state; but, since we hold the deed to be valid and sufficient for that purpose, we need not follow the ippellants into this branch of their argument. They argue further, however, that the state. having sought for and obtained the second

deed, is now estopped from asserting that it holds the land under a different tenure than that expressed in such deed. But we cannot think the conclusion necessarily follows from the conduct of the state. Doubtless the appellants could have made it a condition on giving the second deed, if the state would have consented, that the land should revert to them in case the state should cease to use it as a capitol site, but they did not do this. The remedy reserved for a breach of the condition was that the deed itself should be void that is to say, the state, by failing to perform the conditions, could claim nothing by virtue of the deel; but it was not provided that it must surrender all the rights it bad acquired by virtue of the earlier instrument by a failure to keep these conditions, and, to be enforced, it must have been so expressly provided, as no such condition ('ould be implied.

The sixth is that the original deed is void for want of a sufficient description of the property conveyed. The deed followed the description contained in the act locating the seat of government above quoted, with the exception that it omitted the phrase "town of Olympia” following the words "Main and Union streets." But the omission did not render the description void. Enough remained to accurately locate the land conveyed, and this is all that is necessary to constitute a sufficient description.

Lastly, the appellants object to the sufficiency of the answer filed on behalf of the state, contending that it contains an admission that the state holds the land in question subject to forfeiture in case it ceases to use it for a capitol site. We do not so read the answer, but if it required that construction it would not alter the appellants' position. The case was tried in the court below as if upon sufficient pleadings, and we must consider it upon the same theory in this court. To do otherwise would be to deny to the respondent the benefit of the statutes relating to amendments.

As we find no error in the record, the judgment will stand affirmed.

HADLEY, C. J., and MOUNT and CROW. JJ., concur.

ROOT, J. I dissent. I think Mrs. Sylvester should have been permitted to give testimony as to what the real consideration was for the grant which she and her husband made to the territory of Washington. It is almost, if not entirely, a justifiable inference from the statutes and deed that this grant was made upon the understanding that this land was to be used as the permanent site of the capitol for the territory and succeeding state. Her testimony was offered to fully establish this. I think it should have been received. The patriotism and beneficence manifested by Mr. and Mrs. Sylvester toward this commonweath in its early infancy should

not be repaid by a rigorous application of great weight of authority and of reason is technical rules at this time. If, as I believe, in favor of the law as above stated. 1 they conveyed this land for the sole purpose Brandt, Suretyship, $ 38. The equity of the of its being, and with the understanding with surety to be discharged when he is prejuthe territorial authorities that it should be, diced by the act of the creditor "does not the permanent site of the capitol of the terri- depend upon any contract with the creditor, tory and state, I think that good faith and but upon its being inequitable in him knowfair dealing require that the land should now ingly to prejudice the rights of the surety revert, inasmuch as it has ceased to be used against the principal.” Coleridge, J., in for the purpose for which it was thus Pooley v. Harradine, supra; 1 Brandt, Suretygranted.

ship (30 Ed.) § 38. The relation of principal and surety "is a fact collateral to the con

tract, and no part of it.” Valentine, J., in (49 Or. 379)

Rose v. Williams, 5 Kan. 483. While the HOFFMAN V. HABIGHORST et al.

company may be a stranger to the transac(Supreme Court of Oregon. July 23, 1907.)


tion, so far as disclosed by the paper eviPRINCIPAL AND SURETY-DISCHARGE OF SURE

dence of it, yet it was not a stranger to the TY-ACT OF CREDITOR.

real transaction as disclosed by all the facts To discharge sureties of a debt by the creditor's act, it must appear he knew of the giving origin to the paper. It may be consuretyship when the act was done.

ceded, for the purpose of argument, that the [Ed. Note. For cases in point, sce Cent. Dig. defendants, in fact, as well as by the terms vol. 40, Principal and Surety, $ 21.]

of the note, were the real borrowers from On motion for rehearing. Motion disal- Mrs. Wertheimer of $15,000, and were her lowed.

principal debtors at the time of the signing For former opinion, see 89 Pac. 952.

of the note, yet, back of their contract with

her, there is another contract between the deSLATER, C. A very earnest motion for a

fendants and the company, to the effect that rehearing has been filed by plaintiff's coun- if defendants would sign the note in question, sel in this case, in which connection all the

and permit the company to obtain from Mrs. issues involved have been reargued; but, aft

Wertheimer, for its own use and benefit, the er a painstaking and careful re-examination

proceeds thereof, it would become paymaster of the whole case, we are constrained to of the note, and upon which the later transrecommend an adherence to the opinion.

action was based. Mrs. Wertheimer, through Plaintiff's main contention is that, in or- her agent, Selling, had notice of this colder to sustain the defendants' claim of a re lateral contract at the time of the execulease by an extension agreement, it is neces- tion of the note, as well as at the time of sary that the court must first find that the the execution of the extension agreement. guaranty company was the principal obli- Doubtless she was not bound to treat the gor and debtor on this note, at the time of

company as her debtor, nor to have any dealits execution, for he argues, if it was not so ing with it, in respect to the note. She bound at that time, it would be a stranger might do so or not, as it would appear to to the transaction, and the makers would be to her advantage. But having knowledge not be discharged as a result of an extension of the contractual relation between the makagreement made by the payee, with the com- ers of the note and the company, if she ever pany. In Manley v. Boycot, 2 El. & Bl. 46, dealt with it as her debtor in respect to the decided by the Queen's Bench in 1853, it was debt which was the consideration of the note, held that the defense was not available, un- she was bound at her peril to observe the less the holder when he took the note knew rights of the defendants against the comof the suretyship and agreed to treat the pany arising out of their collateral contract. surety as such. But in Pooley v. Harradine, Counsel for plaintiff relies upon 2 Dan. Neg. 7 El. & Bl. 431, decided in 1857, and in Instru. $ 1324, who says: “The agreement Greenough v. McCelland, 2 El. & Bl. 421, de- for indulgence, in order to discharge the cided in 1860 by the same court, it was held drawer or the indorser, must be made with that the defense might be made when the the maker or acceptor, who is the principal creditor knew of the fact of suretyship, but debtor; and, if it be made with a third pardid not agree to hold the surety as such; and ty, it will not affect the drawer's or init has been generally held in this country dorser's rights or remedies, although such that such sureties may, both at law and in third party may have his appropriate reme. equity, show by parol that they were sure- dy for breach of the contract with him." ties and were known to be such by the cred- This text is apparently based upon the Engitor, and they will be entitled to all the lish case of Frazier v. Jordan, 8 El. & BI. rights, privileges, and immunities of sureties, 302, cited in the footnote to said section. and will be discharged by any act of the There Coleridge rules that the doctrine of (reditor, after he has knowledge of the fact an agreement for indulgence or extension of suretyship, which discharges any other ought not to be extended in case of a consurety. But it must appear that the cred- tract with a stranger; that the principal itor at the time the act complained of was debtor, having given no consideration for done knew of the fact of suretyship. The the promise, has no ground to complain of

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